Citation: 40 DLR (AD) 170,40 DLR 251, 40 (AD) 170,44 DLR 110,41 DLR 524, 4I DLR 524, 40 DLR 493,44 DLR 159,43 DLR 150

Case Year: 1878

Subject: ARMS

Delivery Date: 2018-01-08

Arms Act, 1878

Sections 16 & 18—
Appellant was neither given any notice of enquiry nor was he given any hearing before cancellation of arms—Enquiry undertaken on a sprawling private complaint made by the local upazila Chairman.
No emergency or any other compelling situation preventing giving of notice of enquiry lo the appellant—Nothing on record to show that any specific case was started against the appellant involving alleged misuse of revolver —Inquisitorial nature of enquiry aggravating the degree of unfairness—Principles of natural justice to be observed in proceedings affecting "the person or property or other right of parties concerned "—court adds a rider to the observance of the principle of natural justice that so far as exercise of power under section 18 of the Arms Act is concerned, the absence of a prior notice or hearing may not always invalidate the order passed thereunder if the security of the public peace is involved.
Sk. Ali Ahmed Vs. Secretary, Home Affairs 40 DLR (AD) 170.

Sections 16(1) and 19(1)—
The Sub-Divisional Magistrate, Shariatpur had no jurisdiction whatsoever to cancel the license s of the guns in question under section 18(a) of the Arms Act or under any provision of the Arms Rules of 1924. As the license s of the guns in question were not cancelled by any legally competent authority such as the District Magistrate or by any authorised officer to whom he is subordinate as required under the provisions of Arms Act or the Arms rules, cancellation thereof by the SDO is illegal. Conviction under sections 16(1) and 19(1) of the Arms Act read with section 26 of the Special Powers Act is not sustainable in law.
Anawar Hossains. Vs State 40 DLR 251.

Section 18—
Cancellation and suspension of license for arms—The necessity of recording reasons by the appropriate authority in writing for the cancellation of the license to be emphasized as a general rule—If the appropriate authority chooses not to make its order a speaking one and merely relies on the materials on record, its order stands a greater risk of being struck down.
Sk. Ali Ahmed Vs. Secretary Home Affairs 40 (AD) 170.

Section 18—
Orders passed by the District Magistrate cancelling license s of guns of the petitioners without giving them any notice and opportunity of being heard and giving no reason for cancellation are illegal being violative of the principal of natural justice.
Rezaul Karim (Md) Vs. Ministry of Home Affairs 44 DLR 110.

Section 19A—
Uncorroborated testimony of an accomplice cannot be basis of conviction of an accused.
Kazi ibrahim Vs State 41 DLR 524.

Section 19A—
A person cannot be convicted on surmises and conjectures and from any analogical deduction.
Kazi Ibrahim VS. State 4I DLR 524.

Section 19(f)—
Appellants leading the police to place of occurrence and recovery of arms—Appellants cannot be held guilty of the charge of unauthorised possession of arms under section 19(f) of the Arms Act.
Abdul Khaleque Vs. State 40 DLR 493.

Section 19(f)—
Recovery of arms—culpability—mere knowledge of the accused that the arms were lying at the spot pointed out by him in the absence of evidence that he himself kept the same there or that he had exclusive possession over it, he cannot be made liable under section 19(f).
Abul Hashem Master Vs. State 44 DLR 159.

Arms Rules, 1924

Column 2 of the Table Schedule I as amended by notification No 896—Section II dated Dhaka the l9th November l973—The decision in this case having depended on findings of facts as to whether the seized arm were recovered from the possession of the petitioner, whether the same came within the exception provided for and covered by amnesty, if any, declared by the government, the extraordinary power to prevent the abuse of process of the court is not required to be exercised.
Hossain Mohammad Ershad Vs. State 43 DLR 150

Citation: 5 ADC 138, 5 ADC 143, 5 ADC 397, 5 ADC 920, 3 ADC 232, 2 ADC 891

Subject: Acquisition and Requisition

Delivery Date: 2018-11-18

Acquisition and Requisition of Immovable Property Ordinance

This Court while dismissing the appeals held that the Arbitrator is a creature of the statute (Ordinance II of 1982) and under section 36 of the Ordinance he has been vested with some limited powers of Civil Court. Therefore, the Aribitator has no power of review. It was further held that in view of provision for appeal under section 34 of the Ordinance and the appellants having preferred review application without filing appeal before the Arbitrator, the same was not maintainable Atik Ullah vs. Government of the People's Republic of Bangladesh (M.M. Ruhul Amin J) (Civil) 5 ADC 138

Section 7(3)

Writ respondent/appellant No.l, the requiring body in possession of the land in question having not been made a party in the present writ petition, the judgment and order passed therein suffers from error of law and further the High Court Division was also not justified in directing the writ respondent/appellant Nos.2-4 to release the land in question as the appellant No.l, the requiring body, after getting possession of the acquired land made construction therein spending substantial amount thereby leaving no scope for them to return of the land in question to the respondent No.l and further, notice under section 3 of the Ordinance No. 11 of 1982 is not required to be served personally on the owners of the acquired land. Chittagong Dock Sramik Parichalana Board vs. Shamsul Haque (Md. Tafazzul Islam) Civil 5 ADC 143

Section 3, 7,11

Late A.R.M. Inamul Haq father of the petitioners was a philanthropist and did many things during his lie time for the advancement of education. Before his death he expressed his desire to donate his eyes after his death for the purpose of placing cornea to blind persons and as per this desire after his death his eyes were collected by the doctors and those were placed in the eye of two blind persons and he was the first man of this country who donated his eyes. ...(3) Ameena Ahmed vs. Government of the peoples 'Republic of Bangladesh (Md. Addul Matin J) (Civil) 5 ADC 397

Section 2(f), 13/8 (l)(b)/ 8(1) (f), 3,44,28

The writ-petitioner is entitled to get compensation for the manchinery and industries and shifting costs. Additional Director (Admin) vs. Md. Soke I Hossain Ibne Batuta (Mohammad Fazlul Karim J) (Civil) 5 ADC 920

Section 27,31

When a person whose land was acquired and the Deputy Commissioner awards compensation for said acquired land files a revision award case that itself can sufficiently be considered that the affected person did not accept the award made by the Deputy Commissioner as correct and thereupon having been aggrieved filed the revision award case, in that state of the matter it cannot be said that money awarded by the Deputy Commissioner for the acquired land was received by the affected persons without protest. Deputy Commissioner vs Abdur Rahman (Md. Ruhul Amin J)(Civil) 3 ADC 232

Section 3,5,6,7(1),28

The arbitration case was undoubtedly barred by limitation and the period of limitation prescribed being not extendable in any situation, the appellants upon mutating their names in the revenue record in 1997 were not competent to file the arbitration case or in other words the Arbitration case so filed was incompetent being barred by limitation. Ismail Hussain Posshari vs District Land Acquisition Officer, (Md. Ruhul Amin J) (Civil) 2 ADC 891

Citation: 40 DLR 477, 40 DLR 477, 43 DLR 614, 40 DLR 477, 45 DLR (AD) 110, 40 DLR 477, 40 DLR 477, 41 DLR 274, 41 DLR 274, 43 DLR 564.

Case Year: 1969

Subject: CUSTOMS

Delivery Date: 2018-01-13

Customs Act, 1969
[IV of 1969]

Sections 2(s), 9 and 10—
The prosecution was not successful in proving its case by producing evidence that there was prohibition or restriction in bringing into Bangladesh the seized cigarettes.
Abdul Hamid Vs. State 40 DLR 477.

Sections 2(s) and 156(8)—
Meaning of the’ word “Smuggle” occurring in section 2(s) of the Customs Act (IV of 1969).In section 156(8) the word ‘Smuggle’ has not been defined. Therefore, it is necessary for us to see what is meant by smuggle. According to section 2(s) of the Customs Act the won “Smuggle’ means to bring into or take out o Bangladesh, in breach of any provision of restriction of customs—duties or taxes leviable thereon.
Abdul Hamid Vs. State 40 DLR 477.

Section 156(1) (8)—
Cognizance—Scheduled and non—scheduled offences—when the very taking of cognizance of an offence, the framing of accusation and the trial upon charges of both scheduled and non—scheduled offences together suffered from complete lack of jurisdiction, this could not at all be considered to be a mere defect in the framing of charges which by aid of section 537 of the CrPC can be cured if prejudice is not caused to the accused. A mere defect in framing d charge by the Court having jurisdiction is thing while framing of charge without having any junsdiction is a completely different thing.
Mozammel (Md) Huq Vs. State 43 DLR 614.

Section 156(8)—
The learned Additional Sessions Judge was competent to take cognizance of the offence. Trial was not vitiated for want of jurisdiction.
Abdul Hamid Vs. State 40 DLR 477.

Section 156(8)—
Confiscation of goods— When conviction of the accused was set aside, no part of the sentence could be maintained— High Court Division was not therefore justified in upholding the order of confiscation of the seized goods which was passed as a part of the punishment for an offence under the Customs Act.
Sompong Vs. State 45 DLR (AD) 110.

Section 156(8)—
By Article 98 of the Law Reforms Ordinance No.49 of 1978 the entries relating to offences against other law appearing in Schedule II of the Code of Criminal procedure were substituted. The Magistrate is to try the offence.
Abdul Hamid Vs. State 40 DLR 477.

Section 156(8)—
The Magistrate is vested with jurisdiction to take cognizance of the offence under section 156(8) of the Customs Act.
Abdul Hamid Vs. State 40 DLR 477.

Section 156(8)—
read with Special Powers Act [XIV of 1974] Section 25B (1)—Mere admission of certain facts by PW6 which went in favour or the defence cannot be a ground to disbelieve the said witness.
Mere getting of something more favourable to defence case in the cross— examination in addition to what the defence got during the examination-in-chief cannot be a ground to disbelieve the evidence of a witness who was not declared hostile by the prosecution. The evidence of PW I regarding the recovery of 31 pieces of gold bars from the bag of the accused appellant, in the facts and circumstances of the case, is very much doubtful.
MM Rafiqul Hyder Vs. State 41 DLR 274.

Section 156(8)—
Offence punishable under section 156(8) of the Customs Act being a non—scheduled offence under section 26 of the Special Powers Act (XIV of 1974) is not triable under the Special Powers Act—Trial for both the schedule & non—scheduled offences by the Special Tribunal constituted under the Special Powers Act is illegal.
MM Rafiqul Hyder Vs. State 41 DLR 274.

Section 156(8) clause 89—
Onus—In a criminal case the onus is always on the prosecution to prove that the offence was committed by the accused. But clause (89) of sub-section (8) of section 156 is an exception to the rule. Clause 89 casts a duty on the accused to offer a lawful excuse with regard to the indictment brought against them.
Amir Ali Vs. State 43 DLR 564.

Citation: 5ADC 24, 2ADC 780

Subject: Bangladesh Oil, Gas and Mineral Corporation

Delivery Date: 2018-11-18

Bangladesh Oil, Gas and Mineral Corporation Ordinance,1985

Retiring the respondent No. 1 in both the appeals from their services on completion of their 57^tn years of age ...(1) Bangladesh Gas Fields Co.Ltd vs. Md.Fariduddin Ahmed (Md.Tafazzul Islam J) (Civil) 5ADC 24

Bangladesh Oil Gas and Mineral Corporation (BOGMC) Ordinance 1985 Section 6(1).

There was no provision either in the Ordinance of 1985 or in any rules, circular etc. for absorbing or regularizing a contract service on a permanent basis. The notification for absorbing or regularizing the appellants contract service on a permanent basis was done illegally and without lawful authority. The expression in the public interest was bltantly used for a private cause. Lt. Col. (Retd.) Nazimuddin Ahmed vs Bangladesh (M.A. Aziz J)(Civil) 2ADC 780

Citation: 42 DLR 493, 45 DLR 640.

Case Year: 1982

Subject: DRUGS

Delivery Date: 2018-01-13

Drugs (Control) Ordinance, 1982
[VIII of 1982]

Sections 8 and 16—
Interpretation of Statutes—The order of the appellants’ conviction by the Judge of Drug Court is based on his finding of “keeping in stock and exhibiting the medicine (banned one) in the shop”. Neither section 8 nor section 16 contains the quoted expression. Penal statute must be strictly construed and a court in order to punish an accused must not introduce any expression which has not been used by the makers of the law. The impugned order must therefore be struck down.
Dr. Golam Rahman Vs. State 42 DLR 493.

Section 23—
Instead of holding the trial before the Drug Court it was held before the wrong forum of Special Tribunal which is no trial in the eye of law. The order of conviction and sentence is therefore set aside and the case is sent back to the Drug Court for fresh cognizance and trial.
Shahidullah , 2. Jane Alam Vs. State 45 DLR 640.

Citation: 1 ADC 71, 3ADC 32, 3ADC 550

Subject: Dhaka University

Delivery Date: 2018-11-20

Dhaka University Order 1973, Article 20, 46 (17), 52.

When any election is held in accordance with the provision of any statute that election can be questioned only under the provision of that statute. But when the election is held in violation of the provision of law such election can be questioned in any other forum and not in the forum as provided in that law. Dhaka University represented vs Mr Giasuddin Ahmied Chowdhury @ Gias kamal Chowdhury (Mahmudul A ruin Choudhury C. J.) (Civil) 1 ADC 71

Dismissed from Service on the ground that they were convicted.

Workers and as such the writ petitions at their instance against their dismissal from service were not maintainable without first approaching the Labour

Court for relief and in that view of the matter the judgment of the High Court Division is liable to be set aside Meghna Textile Mills Ltd vs Md. Barkatullah & others (4) (M. M. Ruhul Amin J) (Civil) 3ADC 32

Disciplinary Action against the officers and employees of the Board.

The settled principle of law is that seniority alone is not the sole basis for promotion and that seniority does not create a claim for being promoted although the same create a right in favour of an employee to consider his case of promotion along with the case of others who are posted in the similar situation. Promotion is to be earned by rendering meritorious service and other than seniority promotion is also conditioned by other factors, such as efficiency, good conduct, character, integrity, sense of value, honesty and temperamental suitability. Chairman, Board oflSE Jessore vs Md. Nazir Ahmed (Md. Ruhul Amin J) (Civil) 3ADC 550

Citation: 5ADC 1, 5ADC 120

Subject: Environment Conservation

Delivery Date: 2018-11-22

The Environment Conservation Act, 1995, Section, 4

Writ petition in public interest, impugning the continued failure by the government and other public authorities,in particular the respondent No. 1 to comply with their legal duties under the existing laws including the Environment Conservation Act 1995 and the Environment Conservation Rules 1997 in taking action, inter alia, to seal tube-wells contamined with arsenic and to test water quality and to ensure that the contents of arsenic in the groundwater did not exceed a particular quantity as noted in the Environment Conservation

Rules 1997.......... (2) Rabia Bhuiyan, M

.P vs. Ministry of Local Government (Md. Tafazzul Islam (Civil) 5ADC 1

Establishment Manual of the People's Republic of Bangladesh, Rule 10(2)

The learned Counsel for the petitioners, however, produced photocopies of merit list said to have been prepared by selection committee before appointment of the petitioner and respondents. Since the same was not produced before the High Court Division and for the first time produced before us we are not inclined to accept and rely upon the same. Bangladesh Inland Water Transport Authority vs. Md. Sadiqul Islam (M.M. RuhulAmin J) (Civil) 5ADC 120

Citation: 4ADC8, 3'ADC218

Subject: Family Courts

Delivery Date: 2018-11-24

The Family Courts Ordinance, Section 5

Admittedly appellant No.l Abdul Jalil of Civil Appeal Nos. 56, 57 and 58 of 1995 and appellant Mrs. Sharon Laily Begum Jalil of Civil Appeal No.l 59 of 1995 were man and wife and the latter having been divorced by the former in the month of May, 1995 following a breakdown of marital relations, the question of custody of their four minor childern, namely, Mohammad Nurul Alam Jalil (born on 23.4.1985), Jasmin Akhter Jalil (born on 8.9.1988), Sharlean Akhter. It is now settled that the term 'welfare' must be read in the largest possible sense as meaning that every circumstance must be taken into consideration and the Court must do what under the circumstances a wise parent acting for the true interests of the child would do or ought to do. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can ties of affection be disregarded vide queen vs. Gyngall (1893) 2 QBD 232; Walter vs. Walter 55 Cal 730; Saraswathi Vs. Dhanakoti 48 Mad 299. Abdul Jalil and others vs. Mrs. Sharon Laily Begum Jalil(A.T.M. Afzal CJ) (Civil) 4ADC8

Foreign Arbitral awards in Banlgadesh.

Whether the Court in England or the Court in Bangladesh has jurisdiction over an arbitration in terms of an Agreement between the appellant and the respondent Bangladesh Air Service (Pvt) Ltd vs British Airaways PLC (Mustafa Kama I J) (Civil) 3'ADC218

Citation: 5ADC304, 1ADC 505

Subject: Hat and Bazar

Delivery Date: 2018-11-25

Hat and Bazar (Establishment and Acquisition) Ordinance,1959 as amended in 1966

Declaration that the order contained in memo dated 18.4.2000 passed by the Ministry of land and the order contained in memo dated 15.5.2000 passed by the Commissioner, Khulna Division, Khulna and order contained in memo dated 12.6.2000 passed by the Assistant Commissioner (Land) are illegal, collu-sive,inoperative and not binding upon the plaintiffs and for permanent injunction against the defendants restraining them from taking over the possession of the Bazar and evicting the plaintiffs and other businessmen and demolishing the Bazar... .(2) Robiul Islam and other vs. Secretary Ministry ofLand(Md.Joynul Abedin J) (Civil) 5 ADC304

High Court Division granted the probate as was prayed for, by the compromise petition and in the terms of the compromise.

We are of the view is that although there is a will but unless and until it is proved in accordance with law, on the face of objection raised by any interested party (herein the appellant) a Probate cannot be granted on compromise and it is not permitted by law. Kanai Lai Roy vs Swaraswati Roy (Abu Sayeed AhanunedJ) (Civil) 1ADC 505

Citation: 4ADC 580, 4ADC 582 , 4ADC 585

Subject: Medical and Dental Council

Delivery Date: 2018-11-26

The Medical and Dental Council Act, 1980, Section 20 and 30

Asking her not to use 'Doctor' before her name.

She was registered as Medical Assistant by the Bangladesh Medical and Dental Council. Thus it appears that she is not a medical graduate rather she is a Medical Assistant. Dr. Shamsun Nahar vs. Government of Bangladesh & others (M.M. Ruhul Amin J) (Civil) 4ADC 580

Declaration of title, for khas possession and also for further declaration that the compromise decree passed in Title Suit No. 220 of 1981 is collusive, void, illegal and not binding upon them Md. Kamaluddin Mollah & another vs. Ayesha Khatun & others (Md. Tafazzul Islam J) (Civil) 4ADC 582

Petitioner could not point out that findings and decisions of the High Court

Division that plaintiff failed to prove his possession in the land in suit and also could not show that the finding that the plaintiff failed to prove his case of taking settlement is not based on evidence Jatindranath Mondal vs. The Government of the People's Republic of Bangladesh (Md. Ruhul Amin J )(Civil) 4ADC 585

Citation: 3ADC 560, 4 ADC 8

Subject: Muslim Family Laws

Delivery Date: 2018-11-26

The Muslim Family Laws Ordinance of 1961 Section 5, 9.

Ordinance of 1985 is only a procedural law and that the law of limitation does not apply at all to such kinds of law were neither mooted nor decided. Jamila Khatun vs Rustom Ali (Mustafa Kamal J) (Civil) 3ADC 560

Section 7, 25(1)

Admittedly appellant No.l Abdul Jalil of Civil Appeal Nos. 56, 57 and 58 of 1995 and appellant Mrs. Sharon Laily Begum Jalil of Civil Appeal No.l 59 of 1995 were man and wife and the latter having been divorced by the former in the month of May, 1995 following a breakdown of marital relations, the question of custody of their four minor childern, namely, Mohammad Nurul Alam Jalil (born on 23.4.1985), Jasmin Akhter Jalil (born on 8.9.1988), Sharlean Akhter.

It is now settled that the term 'welfare' must be read in the largest possible sense as meaning that every circumstance must be taken into consideration and the Court must do what under the circumstances a wise parent acting for the true interests of the child would do or ought to do. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can ties of affection be disregarded vide queen vs. Gyngall (1893) 2 QBD 232; Walter vs. Walter 55 Cal 730; Saraswathi Vs. Dhanakoti 48 Mad 299. Abdul Jalil and others vs. Mrs. Sharon Laily Begum Jalil(A.T.M. Afzal CJ) (Civil) 4 ADC 8

Citation: 2ADC 718, 2ADC'236, 3ADC 738

Subject: Sales Tax

Delivery Date: 2018-11-28

The Sales Tax Ordinance, 1982 Section 4(1).

The High Court Division in the respective writ petitions committed illegality in directing the customs authority to assess the customs duty etc, on the basis of invoice value that was prevailing at the time of opening of letters of credit inasmuch as customs authority has the authority to determine normal value and realise duty thereon at the rate prevailing on the date of submission of the bill of entry. Commissioner of Customs, Chittagong vs Bangladesh Traders (Md. Tafazzul Islam J)(Civil) 2ADC 718

Section 5(A)

The respondent has not stated in his petition as to the nature and character of the duplex board and that how the same could be converted into boxes or paper board or inner or master carton as admittedly the respondent do not have manufacturing plant to convert duplex boards into inner and master carton and that inner carton and master cartons converted out of duplex boards would not change their original shape or form while making them into cages or boxes National Board ofRevenu vs Mustafizur Rahman (Mohammad Fazlul Karim J) (Civil) 3ADC 40 stances. Generally, a review will only be exercised consistently with the nature of review jurisdiction and with due regard to the principles that there must be an end of litigation. Law do not allow any court to sit over in appeal against its own decision but allows its own decision to be reviewed under its very limited scope and limitation set for in the law and rules. And the said jurisdiction should not be exercised or abused sitting over the decision, as it, it is an appeal. A.H.M. Mustain Billah & A.H.M Mustain Billah vs Bangladesh (Mohammad Fazlul Karim J) 2ADC'236

Seniority cum merit is the pre-domi-nant factor for promotion, according to Service Regulation of 1997

Delegation of power once made shall continue unless withdrawn/rescinded. Therefore, by a subordinate legislation i.e. service regulations of 1997 the power conferred by the P.O. 10 of 1972, cannot be taken away. Bangladesh Shipping Corporation & others -vs-Mohammad Hossain & others (M.M. Ruhul Amin, J)(Civil) 3ADC 738

Citation: 40 DLR (AD) 178,40 DLR (AD) 178

Case Year: 1962

Subject: CONSTITUTION OF PAKISTAN

Delivery Date: 2018-01-09

Constitution of Pakistan, 1962

Article 98 read with Constitution of Bangladesh, Article 102—
since 1962 prerogative writs were omitted and the constitutional jurisdiction to issue necessary orders on an application was conferred on the High Court (Division) in its own terms.
Radical difference in language between Article 170 of 1956 Pakistan Constitution and Article 98 of 1962 Pakistan Constitution in respect of the jurisdiction conferred on the High Courts.
Sajeda Parvin Vs. Government of Bangladesh 40 DLR (AD) 178.

Article 98(2)(b) read with Constitution of Bangladesh, 1972 Article 102(2)(b)(i)—
The language of Article 98 of 1962 Pakistan Constitution which has been imported into Article 102 of Bangladesh Constitution of 1972 has been couched in such a manner which is untrammeled by the formalities or technicalities of either section 491 of the Code of Criminal Procedure or the old prerogative writ of Habeas Corpus. Ref. 21 DLR (SC) 1(11).
Sajeda Parvin Vs. Government of Bangladesh 40 DLR (AD) 178.

Citation: 44 DLR 77.

Case Year: 1976

Subject: VILLAGE COURTS

Delivery Date: 2018-01-18

Village Courts Ordinance, 1976
(LXI of 1976)

Section 3—
Jurisdiction—When trial by Magistrate and hearing of appeal by the Sessions Judge coram non judice—All cases relating to offences’ specified in Part I of the Schedule to the Ordinance shall be exclusively triable by a village Court and no criminal Court shall have jurisdiction to try any such case. Trial of the accused for offences falling under the schedule by the Magistrate and hearing of the appeal as done by the Sessions Judge are absolutely without jurisdiction. If a court has no jurisdiction to try a case, the question of either submitting to the jurisdiction or raising objection to its jurisdiction would not arise. Parties by their mutual consent can neither confer a jurisdiction which does not exist in law nor can take away a jurisdiction which so exists. Jurisdiction is a question of statute and not of consent.
Dr. Joynal Abedin Vs. State 44 DLR 77.

Citation: 42 DLR 293, 42 DLR 293, 42 DLR 293, 43 DLR 137.

Case Year: 1969

Subject: INDUSTRIAL RELATIONS

Delivery Date: 2018-01-13

Industrial Relations Ordinance, 1969
[XXIII of 1969]

Section 3—
The corporation has a right to frame its own Rules concerning the condition of employment of workers as provided under the proviso to section 3 of the Act—Rules not found invalid—Labour Court travelled beyond the pleading of the party.
Brigadier Choudhury Khalequzzaman Vs. Sk. Shahabuddier 42 DLR 293.

Section 26—
The Labour Court has no jurisdiction to deteramine the quauteem under section 26—Labour Court can not punish an alleged offender to failure to comply with an indefinate order.
Brigadier Choudhury Khalequzzaman Vs. Sk. Shahabuddin 42 DLR 293.

Section 34—
The complainant workmen may have the quantum of termination benefit fixed or determined by the process of law may be by filing an application under section 34 of the Industrial Relations Ordinance—Labour Court is not to decide the said quantum under section 26 of the Standing Orders Act.
Brigadier Choudhury Khalequzzaman Vs. Sk. Shahabuddin 42 DLR 293.

Sections 36(3) & 64—
Labour Court and a Magistrate, 1st Class, having jurisdiction in the relevant matter shall have concurrent jurisdiction to try an offence punishable under the Industrial Relations Ordinance. Under section 64 of the Ordinance a Magistrate 1st Class, has also been invested with power to try any offence under this Ordinance. The decision reported in 1985 BLD (AD) 278 is not applicable in the facts of the present case.
Kamaluddin Chowdhury Vs. Mashiudowllah 43 DLR 137.

Citation: 42 DLR (AD) 89,45 DLR 643,43 DLR 163,44 DLR 500,42 DLR 491

Case Year: 1974

Subject: CHILDREN

Delivery Date: 2018-01-08

Children Act, 1974

Section 2(f) —
In view of the definition of child as appearing in section 2(f) appellant Nasir ought to have been tried by Juvenile Court. Trial of child along with adult is forbidden by law. The trial of the appellant being held not by Juvenile Court is hit by want of jurisdiction.
Md. Nasir Ahmed Vs. Stare 42 DLR (AD) 89.

Section 2(f), 6 and 8—
No Child is to be charged with or tried for any offence together with an adult. The child must be tried in the Juvenile Court and not in the ordinary court .Only the adult can be committed to the Court of Sessions and the Juvenile Court will take cognizance of juvenile offenders.
State Vs. Deputy Commissioner 45 DLR 643.

Sections 2(f) & 6(1)—
Joint trail of applicant Sunil, a child, along with the appellants being adults was illegal.
Kadu VS State 43 DLR 163.

Sections 2(f),55—58 and 61—
offence against child—question of custody—if an offence is committed against a child before its attaining the age of 16, the court has the power to keep it in custody till the child attains the age of 18 or till the proceeding in respect of the crime is terminated.
Sumati Begum Vs. Rafiqullah 44 DLR 500.

Sections 2(b), 3 & 6—
The word "cinematograph" is comprehensive enough to include a video—cassette player. It means a composite equipment used for production, projection and exhibition of motion picture film. There is nothing to show that the timber 'Aroth' from where the incriminating materials were seized was a place licensed under the Act and therefore the contention raised against the conviction has no substance.
Md. Aktarul Vs. State 42 DLR 491.

Citation: I ADC 570, 3ADC 798

Subject: Building Construction

Delivery Date: 2018-11-19

Building Construction Act, 1952, Section 9

The learned Judge of the High Court Division held that since a suit is pending between respondent No.4 and her two brothers for declaration of title, recovery of khas possession, cancellation of power of attorney and for cancellation of sale deeds the RAJUK has taken a reasonable and lenient view by merely passing the order of suspension of the construction work without cancelling the plan. Shafiuddin Miah & another vs, Rajdhani Unnayan Kartripakhay (Latifur Rahman J) (Civil) I ADC 570

Bhagoban Das vs. Mahadeb reported in A.I.R. 1923 Allahabad 298

The High Court Division committed an error of law by discharging the Rule in so far as to the appointment of Acting Nazir/Nazir as guardian in contravention of the provision of the Rule 843(1)(2) of Civil Rules and Orders and Rule 4(4) of Order 32 of the Code of Civil Procedure and such appointment being illegal and without jurisdiction, the Rule ought to have been made absolute for the protection of rights/ interests of the minors and also for ends of justice; in the case of Bhagoban Das vs. Mahadeb reported in A. I. R. 1923 Allahabad 298 it has been held that a vakil appointed as guardian of minors by court is an officer of that Court for the purpose of Order 32 Rule 4(4) of the Code of Civil Procedure and as such in Bangladesh. Anowarul Hoque being dead his heirs 1 (a): Md. Ruhul Amin and others vs Mohammad Tafazzal Mondal and otherss (Md. Tafazzul Islam, J)(Civil) 3ADC 798

Citation: 1 ADC 256, 1 ADC 371, 2 ADC 45, 2 ADC 48, 2 ADC 346, 2 ADC 411, 2 ADC 553, 2 ADC 684, 2 ADC 841, 3ADC 210

Subject: Abandoned Building Provision

Delivery Date: 2018-10-24

Abandoned Building Provision of or dinance No. 54 0f 1985

Krred in law in importing a theory of certificate as ro the non abandoned character of [lit suit land and in imputing ifi
motive. Additional Deputy Commissioner (Rev) Dhaka vs Mst. Farhad Begum (Md. Tqfazzul Islam J (Civil) 1 ADC 256

Section 5(1 )(a)(b) (2), 7

Settlement the initial presumption is that the enlisicd building is an abandoned rroperty and that the onus lise on the claimant to show that jt is not an abandoned property. The onus will be discharged by showing that on the elate of promulgation of P.O. No. 16 of 1972 the owner of his Attorney or his representative was in possession of the disputed property and was managing the same, Bangladesh vs Mr. K.M. Zaker Hossain {Md. Ruhul Amin J) (Civil) 1 ADC 371

Section 5, Article 7

Since there was no notice contemplated under Article 7 and there was non-corn-pliarwc of ihc provision of sectfon 5 of the Ordinance No. 54 of" 1985 as no notice under section 5(1) (a) of the Ordinance was ever served and as such the property was wrongly inducted in the 'ka' list of the abandoned building and the listing as such is undoubtly has been done illegally and without any lawful authority. Abdur Rashid Mollah vs Bangladesh (Mohammad f'azfuI Karim J) (Civil) 2 ADC 45

Section 5(2)

In a situation when the heirs of original allottee were all through in this country the High Court Division rightly found that the property has been enlisted as abandoned property. This aspect of the matter has not been properly considered by the Court of Settlement" Govt. BMWUD. Dhaka vs Alhaj Shamsul Hoque.' (Md Ruhul Anun J) (Civil)2 ADC 48

The Abandoned building

(Supplementary provisions)

ordinance (LIV of 1985

Section 10(5)

When his possession in the case property has been proved on the basis of thedeeds of agreement, the last one executed being executed in February, 1970, there is no scope of" enlisting the case property in the "Ka'ⁿ list as abandoned property. Bangladesh vs The Chairman 1st Court of Settlement, (Md. Hamidul Haque J) (Civil) 2 ADC 346

Section 5(1)

For enlistment of a properly in "ka" list the Government must satisfy the court that the possession of the property was taken over by it and for enlistment in "kha'¹ list the government must establish that it gave notice upon the person in possession of the property to surrender possession before it’s enlistment in "kha" list. In these cases neither possession of the properly was taken before publication of" Gazette Notification wherein the property was enlisted under "ka” schedule nor any prior notice for surrender of possession was served upon the person in possession of the building In view of these factual positions¹ the Government had no authority lo publish the Gazette Notification enlisting the properly in question in **ka" schedule and accordingly the learned Judges of the High Court Division rightly declared that the property in question could not be declared as an abandoned properly nor can il be enlisted in "khaⁿ list of the list of" abandoned property as published in the impugned Gazette Notifications Bangladesh vs Md. Shajahan & Showkat Jong Hsami (A. M. Mahmudur Rahman J) (Civil)2 ADC 411

The essence of the matter is that the owner must receive back possession of the property actually and effectively from those who took it over as abandoned properties. The actual and effective restoration or transfer may take place either by physical delivery of possession or "by other appropriate means. Bangladesh vs Gvt. (Mustafa Kamal C J) (Civil)2 ADC 553

Section 5, 7

The onus, therefore, is squarely on the claimant of the building to prove that the building is not an abandoned property. The Government has no obligation ; either to deny the tacts alleged by the ; claimant or to disclose the basis of treating the property as abandoned property merely because the same is disputed by the claimant, Bangladesh vs Md. Jalil (A.T, M. Afzal C J) (Civil) 2 ADC 684

Abandoned Propertice lost character if released by Government

Once the disputed properties were released by the Government petitioner from the list of abandoned buildings, the properties had lost the character of abandoned properties and as such the Government petitioner had no locus standi to file the civil suit challenging the validity of the gift made in favor of the respondent after disposal of the writ petitions, review petitions and civil petitions for leave¹ to appeal. Bangladesh vs Ali Akbar Ansari (M. M. Ruhul Amin J )(Civil) 2 ADC 841

Section 5(2), 7

The High Court Division while exercising its jurisdiction under Article 102(2) of ihe Constitution in respect of the judgment of a tribunal or in other words exercises its jurisdiction in certiorari is certainly not acting as a Court to appeal and to re assess the evidence and finally to arrive at a view different from the tribunal in the absence of arriving at a finding that the view taken by the tribunal in the background of the materials noticed by its is not legally tenable or logically not well founded. Bangladesh vs Rowshan Ara Begum (Md. Ruhul AminJ)(Civil)3ADC 210

Citation: I ADC 256, 1 ADC 371, 2 ADC 45, 2 ADC 48

Subject: Abandoned Building

Delivery Date: 2018-11-18

Abandoned Building Provision of or dinance No. 54 of 1985

Erred in law in importing a theory of certificate as to the non abandoned character of the suit land and in imputing ill motive. Additional Deputy Commissioner (Rev) Dhaka vs Mst. Farhad Begum (Md. Tafazzul Islam J) (Civil) I ADC 256

Section 5(l)(a) (b) (2), 7

Settlement the initial presumption is that the enlisted building is an abandoned rroperty and that the onus lise on the claimant to show that it is not an abandoned property. The onus will be discharged by showing that on the date of promulgation of P.O. No. 16 of 1972 the owner of his Attorney or his representative was in possession of the disputed property and was managing the same. Bangladesh vs Mr. K.M. Zaker Hossain (Md. RuhulAmin J) (Civil) 1 ADC 371

Section 5, Article 7

Since there was no notice contemplated under Article 7 and there was non-compliance of the provision of section 5 of the Ordinance No. 54 of 1985 as no notice under section 5(1) (a) of the Ordinance was ever served and as such the property was wrongly included in the 'ka' list of the abandoned building and the listing as such is undoubtly has been done illegally and without any lawful authority. Abdur Rashid Mollah vs Bangladesh (Mohammad Fazlul Karim J) (Civil) 2 ADC 45

Section 5(2)

In a situation when the heirs of original allottee were all through in this country the High Court Division rightly found that the property has been wrongly enlisted as abandoned property. This aspect of the matter has not been properly considered by the Court of Settlement". Govt. BMWUD. Dhaka vs Alhaj Shamsul Hoque (Md Ruhul Amin J) (Civil)2 ADC 48

Citation: 2 ADC 841, 3 ADC 210

Subject: Abandoned Propertice

Delivery Date: 2018-11-18

Abandoned Propertice lost character if released by Government

Once the disputed properties were released by the Government petitioner from the list of abandoned buildings, the properties had lost the character of abandoned properties and as such the Government petitioner had no locus standi to file the civil suit challenging the validity of the gift made in favour of the respondent after disposal of the writ petitions, review petitions and civil petitions for leave to appeal. Bangladesh vs Ali Akbar Ansari (M. M. Ruhul Amin J)(Civil) 2 ADC 841

Section 5(2), 7

The High Court Division while exercising its jurisdiction under Article 102(2) of the Constitution in respect of the judgment of a tribunal or in other words exercises its jurisdiction in certiorari is certainly not acting as a Court to appeal and to re assess the evidence and finally to arrive at a view different from the tribunal in the absence of arriving at a finding that the view taken by the tribunal in the background of the materials noticed by its is not legally tenable or logically not well founded. Bangladesh vs Rowshan Ara Begum (Md. Ruhul Amin J) (Civil) 3 ADC 210

Citation: 5 ADC 138, 5 ADC 143, 5 ADC 397, 5 ADC 920, 2 ADC 891, 2 ADC 738, 1 ADC 555, 1 ADC 596

Subject: Acquisition and Requisition of Immovable Property

Delivery Date: 2018-10-24

Acquisition and Requisition of Immovable Property Ordinance

This Court while dismissing the appeals held that the Arbitrator is a creature of the statute (Ordinance II of 1982) and under section 36 of the Ordinance he has been vested with some limited powers of Civil Court. Therefore, the Arbitrator has no power of review. It was further held that in view of provision for appeal under section 34 of the Ordinance and the appellants having preferred review application without filing appeal before the Arbitrator, the same was not maintainable Atik Ullah vs. Government of the People’s Republic of Bangladesh (M.M. Ruhul Amin J) (Civil) 5 ADC 138

Section 7(3)

Writ respondent/appellant No. 1 the requiring body in possession of the land in question having not been made aparty in the present writ petition, the judgment and order passed therein suffers from error of law and further the High Court Division was also not justified in directing the writ respondent/appellant Nos,2-4 to release the land in question as the appellant No. 1, the requiring body, after getting possession of the acquired land made construction therein spending substantial amount thereby leaving no scope for them to return of the land in question to the respondent No. 1 and further, notice under section 3 ol The Ordinance No. 11 of 1982 is not required to be served personally on the owners of the acquired land. Chittagong Dock Sramik Parichalana Board vs. Shamsul Haque . (Md. Tafazzul Islam) Civil 5 ADC 143

Section 3, 7,11

Late A,R.M. Inamul Haq father of the

petitioners was a philanthropist and did many things during his lie time for the advancement of education. Before his death he expressed his desire to donate his eyes after his death for the purpose of placing cornea to blind persons and as per This desire after his death his eyes were collected by the doctors and those were placed in the eye of Two blind persons and he was the first man of this country who donated his eyes. -,(3) Ameena Ahmed vs. Government of the people’s 'Republic of Bangladesh (Md. Addul Matin J) (Civil) 5 ADC 397

Section 2(f), 13/8 (1)(b)/8(1)(f), 3, 44, 28

The writ- petitioner is entitled to get compensation for the machinery and industries and shifting costs. Additional Director (Admin) vs. Md. Sohel Hossain Ibne Batuta (Mohammad Fazlul Karim J) (Civil) 5 ADC 920

Section 27,31

When a person whose land was acquired and the Deputy Commissioner awards compensation for said acquired land files a revision award case that itself can sufficiently be considered that the affected person did not accept the award made by the Deputy Commissioner as correct and thereupon having been aggrieved filed the revision award case, in that state of the matter it cannot be said that money awarded by the Deputy Commissioner for the acquired land was received by the affected persons without protest. Deputy Commissioner vs Abdur Rahman (Md. Ruhul Amin J)(Civil) 3 ADC 232

Suction 3, 5, 6, 7(1), 28

The arbitration case was undoubtedly barred by limitation and the period of limitation prescribed being not extendable in any situation, the appellants upon mutating their names in the revenue record in 1997 were not competent to file the arbitration case or in other words the Arbitration case so filed was incompetent being barred by limitation. Ismail Hussain Posshari vs District Land Acquisition Officer (Md. Ruhul Amin J) (Civil) 2 ADC 891

between Ihe requisition notice of acquisition and of actual acquisition, in the facts and circumstances of the instant case that no step has yet been taken for acquisition of the hind on publication of the notification under section 5(7) of the Act, we direct the authority to take immediate steps to that effect and assess the compensation at present market value. Rajshahi Development Authority vs Sultan Ahmed (Mohammad Fazlul Karim J)(Civil) 2 ADC 738

Administrative Tribunal Act. 1980

Administrative Appellate Tribunal relied on a document which had no evidentiary value in the eye of law. Secretary, Ministry of Defence & ors. vs Abdul Mannan Lasker (Md. Tafazzul Islam J) (Civil) 1 ADC 555

Section 4(2)

Inspite of some amount of dubiousness on the part of the Government as regards the absorption of the respondent we have thought it just and proper to extend the benefit of doubt in favour of the respondent, lor otherwise it will amount to endorsing a double standard on the part of executive Government giving a benefit to a particular person and denying the same to another although they are otherwise equal. The Director General_t NSI vs Sultan Ahmed (A.T.M. Afzal CJ) 1 ADC 596

Citation: 2 ADC 738

Subject: Acquisition and Requisition

Delivery Date: 2018-11-18

Acquisition and Requisition Ordinance 1982, Section 47, 48.

There should be some proximity between the requisition notice of acq sition and of actual acquisition, in facts and circumstances of the inst case that no step has yet been taken f acquisition of the land on publication the notification under section 5(7) of Act, we direct the authority to ta immediate steps to that effect and asse the compensation at present mark value. Rajshahi Development Authori vs Sultan Ahmed (Mohammad Fail Karim J)(Civil) 2 ADC 738

Citation: 3 ADC 953

Subject: Application under Order 7 Rule 11 of the Code of Civil Procedure

Delivery Date: 2018-11-18

Application under Order 7 Rule 11 of the Code of Civil Procedure

That the petitioner having filed the plaint showing cause of action on the basis of facts alleged, the truth of which is to be determined on evidence to be adduced during trial, the High Court Division committed error in not holding that the trial court was wrong in rejecting the plaint. He thereafter submits that the High Court Division was in error in dismissing the appeal upon an erroneous view that there is no scope for amendment of letter of credit. Messrs Al-Haj Oil Mills Ltd. vs. Willmer Trading (Pvt.) Ltd. & Ors. (Amirul Kabir Chowdhury J)(Civil) 3 ADC 953

Citation: 3 ADC 2JO, 1 ADC 371

Subject: Bangladesh Abandoned Property

Delivery Date: 2018-11-18

Bangladesh Abandoned Property (Control, Manage and Disposal) Order, 1972 (Presiolent's Order No. 16 of 1972).

The High Court Division while exercising its jurisdiction under Article 102(2) of the Constitution in respect of the judgment of a tribunal or in other words exercises its jurisdiction in certiorari is certainly not acting as a Court to appeal and to re assess the evidence and finally to arrive at a view different from the tribunal in the absence of arriving at a finding that the view taken by the tribunal in the background of the materials noticed by its is not legally tenable or logically not well founded. Bangladesh vs Rowshan Ara Begum (Md. Ruhul Amin J)(Civil) 3 ADC 2JO

Section 5(1) (a) (b) (2), 7

Settlement the initial presumption is that the enlisted building is an abandon property and that the onus lies or claimant to show that it is not ar doned property. The onus will charged by showing that on the dated of promulgation of P.O. No. 16 of 1972 the owner of his Attorney or his representative was in possession of the disputed property and was managing the same. Bangladesh vs. Mr. K.M. Zaker Hossain (Md. Ruhul Amin J) (Civil) 1 ADC 371

Citation: 5 ADC 737.

Subject: Bangladesh Agricultural Development

Delivery Date: 2018-11-18

Bangladesh Agricultural Development Corporation Employees Service Rules, 1990

Termination of the service of the respondent Nos. 2-8 as illegal holding that the order for release from service of the respondent Nos. 2-8 is nothing but a constructive dismissal from service. Bangladesh Agricultural Development Corporation represented vs. Md. Shamsul Hague Mazumder (Md. Abdul Matin J) (Civil) 5 ADC 737.

Citation: 1, MLR (1996) (HC) 73, 5 MLR(2000)(AD) 258, 2, MLR(1997) (AD) 71, 3, MLR(1998) (HC) 185, 1, MLR (1996) (HC) 295, 7 BLD (AD) 192

Case Year: 1979

Subject: Bangladesh Biman Corporation Employees

Delivery Date: 2018-04-01

Bangladesh Biman Corporation Employees

(Service) Regulations, 1979

Regulation 11— Age of retirent—

The age limit of the petitioner to remain in seivice till attaining 57 years cannot be reduced or curtailed specially when such right of an employee is accrued under the law when he was appointed. Regulation 11 as amended by S.R.O. No. 56 AL/84 dated 5-2-1984 reducing age limit of retirement of Cabin Crew from 57 to 35 years without corresponding amendment of rule 3 and 4 of Bangladesh Biman Seivice (Pension and Gratuity), Rules, 1988 being discriminatory and violative of article 27 and 28 of the Constitution is void and of no legal effect.

Dalia Parueen Vs. Bangladesh Biman Corporation and another. 1, MLR (1996) (HC) 73.

Regulation 11A(2)— Public Servants (Retirement) Act, 1974- Section 9(2)- Power of the Government to retire Biman Employee-Defence Service officers (Appointment and Fixation of Seniority in Civil Post) Rules 1983—

An employee of Bangladesh Biman Corporation is a Public Servant within the meaning of section 2(d) of the Public Servants (Retirement) Act, 1974. A Defence officer's past service is counted .towards his seniority on appointment in civil post. Therefore the Public Servants (Retirement) Act, 1974 is applicable to such an employee after completion of 25 years seivice including his past defence service.

Bangladesh Biman Corporation Vs. Lt Col. (Reid.) Md. JoynuL Abedin & others- 5 MLR(2000)(AD) 258.

Regulation 18(C)-— Determination of seniority of the recruits under one advertisement and under same recruitment examinations but undergoing training in batches one after another due to logistic constraints—

Where the employees are recruited in pursuance of one advertisement under the same written and viva voce. examinations and where the results of the training of such recruits are counted towards determining their inter-se-seniority, the infer se-seniority of such employees should be determined on the basis of the merit taken together of the written examination, viva voce test and the result of the training regardless of whether such recruits are given training at a time or in batches at different time due to logistic problem.

Aminul Hoque and others Vs. Rejiqul Hassan and others. 2, MLR(1997) (AD) 71.

Regulation 24— Foregoing promotion does not exempt from transfer—

An employee of Bangladesh Biman is under the legal obligation to serve in any station in Bangladesh and abroad as required by regulation 24 of the Regulations, 1979. That the writ petitioner has forgone his right of promotion by itself does not exempt him from being transferred elsewhere for administrative reasons. The order of transfer of the petitioner being not one offending any of the fundamental rights, does not call for any interference under the writ jurisdiction.

KM. Nurul Islam us. Secretary, Ministry Civil Aviation and Tourism and others 3, MLR(1998) (HC) 185.

Rule 4— Voluntary retirement— Non-impleading of Biman Corporation as party not fatal—

An employee of Bangladesh Biman Corporation has option to retire on completion of 25 years service by giving 30 days prior notice of the intention and the authority is bound to allow such voluntary retirement. An application for optional retirement cannot be refused on ground of vague and wild allegation and when no enquiry has been commenced. When the Managing Director is made party mere non-impleading of the Bangladesh Biman Corporation being of technical nature will not frustrate the purpose of the writ petition.

M. Rashiduzzaman Vs. Gouernment of Bangladesh and others. 1, MLR (1996) (HC) 295.

Section 14 and 31 (d)- Bangladesh Biman Corporation Employees (Service) Regulations, 1979- Regulation 18 and 19—

Interpretation of statute— In case of conflict parent law shall prevail over subordinate legislation.

Classification of "existing employees" and "new entrants" Fixation of seniority— Majority view— Per Shahabuddin Ahmed-J. B.H. Chowdhury J and M.H. Rahaman-J. concurring with him.

The Ordinance XIX of 1977 was promulgated in 1977 with a provision, for making appointments of officers and employees of the Corporation. In exercise of power conferred by article 30, the Biman Corporation has made the Regulations in December 1979 and it came into force from the date. The respondents having been appointed earlier than the Regulations, that is, in June 1978 cannot be brought into the class of "new entrants" as referred to in Rule 18(a) for the purpose of determination of seniority unless the Regulations were given effect from the date of such appointment or from the date of the Ordinance. "Existing employees" therefore mean those employees who were in the Corporation's service when the Regulations were made and published. The employees who are appointed after the Regulations came into force, are the 'new entrants'.

Minority view— F.K. Fazle Munim— C.J. gave dissenting judgment. A.T.M. Afzal- J concurring with him.

The Regulations cannot in the absence of such classification in the Ordinance divide the employees into two categories, such as, 'new entrants' and "existing employees'. It is only the parent Act i.e. the Ordinance which must provide the service structure of the Corporation's' employees. Provisions of the Regulation 18(a) and 19 must be constructed with reference to section 14 and 31(d) of the Ordinance which, by their terms, created the demarcation between the two groups of employees, namely, those employees of the Biman who stood transferred to the Corporation on the date of the coming into operation of the Ordinance and those employees who will be appointed after the Corporation came into force.

Parent Law shall prevail—

There is no dispute that provisions of a subordinate legislation must be in conformity with those of its parent legislation and in the case of any conflict the provisions of the parent law shall prevail. In this case the Ordinance is the parent law and the Regulations are its subordinate legislations and if there is any vacuum in the subordinate legislation in respect of any matter, but about which specific provision has been made in the parent law, then the provision of the parent law shall be read into the subordinate legislation.

Bangladesh Biman Corporation Vs. Syed Aftab AH and others- 7 BLD (AD) 192.

Citation: 2ADC 480

Subject: Bangladesh Citizenship Temporary

Delivery Date: 2018-11-18

Bangladesh Citizenship Temporary Order 1972 ( P. O No. 149 of 1972), Article 2.

It is clear that the respondents though filed nationality certificate and the power of attorney to show that they are citizens of Bangladesh which had not been controverted by any tangible material on record, the birth right of any one to be a citizen of any particular country could not be brushed aside in the absence of any positive contrary intention manifested so as to deprive him the right to be a citizen of a country where he was born. Bangladesh vs Mrs. Rehanan Kamal (Mohammad Fazlul Karim J) (Civil) 2ADC 480

Citation: 4ADC 91

Subject: Bangladesh Civil Service

Delivery Date: 2018-11-18

Bangladesh Civil Service (Re-organisation) Order, 1980

How far the constitution of Bangladesh has actually secured the separation of the judiciary from the executive organs of the State and whether the Parliament and the executive have followed the constitutional path are the crux issues that fall to be determined in this appeal. Secretary, Ministry of Finance, Government of Bangladesh, Bangladesh Secretariat, Dhaka vs. Md. Masdar Hossain & others (Mustafa Kamal CJ) (Civil) 4ADC 91

Citation: 14 MLR (2009) (AD) 314

Case Year: 1981

Subject: Bangladesh Public Service Commission

Delivery Date: 2018-03-11

Bangladesh Public Service Commission

(Conduct of Business) Rules, 1981

Rules 16 and 17— These two rules provide for distinctly two separate procedure for selection of candidates by the Public Service Commission (PSO)—

The procedure for selection of candidates for recruitment at the entry level through written examination has been specified under rule 16 while that for the selection for appointment/ promotion to the higher position in specialised subject through viva voce test has been defined under rule 17. Their lordships of the Appellate Division of the Supreme Court held the procedure of rule 17 is applicable to the instant case and as such further held the impugned selection was properly made by the P.S.C. Accordingly the apex court allowed the appeals arid set aside the judgment of the High Court Division. Dr. Mohammad Sanvar Ramiz and others Vs. Dr. Shyam Sundar Kunda and others 14 MLR (2009) (AD) 314.

Citation: 2ADC 353

Subject: Bangladesh Rin Salishi Ain

Delivery Date: 2018-11-18

Bangladesh Rin Salishi Ain (XV of 1989), Section 6, 7.

From the recitals of the deed in question it appears that being in need of money
for marriage of the sister of the plaintiff respondent Nos. 1 to 3, the transaction
was made and as such it does not come with the purview of Section 6 of the
Act..... that the plaint also does not dis-close any cause of action and as such....
the plaint ought to have been rejected and that having been not done there has
been serious error of law committed by both the courts below. Md. Akkas Ali
Biswas vs Ashit Kumar Mojumder (Amirul Kabir Chowdhury J) (Civil) 2ADC 353

Citation: 1ADC 335, 1ADC 144

Subject: Bangladesh Servants

Delivery Date: 2018-11-18

Bangladesh Servants (Special Provisions) Ordinance 1979 Section 6(2) 5(1)

At the time of dismissal the review provision was not there for the appellant to avail it. Bangladesh vs Md. Akhteruzzaman (K. M. Hasan J) 1ADC 335

Bangladesh Service Rules 34, 72 (b) 195.

The respondent was not absent from duty. He was prevented from joining his duties because of the order of removal. Rule 195 has also no application. B.S.M.E vs Shemsuddiin Ahmed (Civil) 1ADC 144

Citation: 20 BLD (HCD) 235, 19 BLD (AD) 249, 20 BLD (AD) 32, 20 BLD (AD)260, 20 BLD (AD) 170, 22 BLD(AD)41, 20 BLD(HCD)235

Subject: Bank Companies

Delivery Date: 1970-01-01

Bank Companies Act, 1991

Section—14

From the Memorandum and Articles of Association of BRAC Bank it appears that the paid up capital is only Tk. 20 crores far less than one-half of the subscribed capital. It may be argued that BRAC Bank has not yet commenced its business, but the fact remains that after obtaining the no objection certificate and completion of registration, the BRAC Bank has proceeded with the opening of its office at Gulshan and fixed the date for it’s opening in a few days time. Thereby process of commencement of business has already started without satisfying the requirement.

Professor Muzaffar Ahmed Vs Bangladesh Bank & others, 20 BLD (HCD) 235.

Section—17

The High Court division will only decide the legality of the notice under section 17 of the Act on perusal of the notice only and on no other supporting or opposing materials.

Md. Saful Alam alias Masudul Alam Chowdhury Vs Bangladesh Bank and others, 19 BLD (AD) 249.

Section—17

On a close reading of section 17 of the Act, as amended up-to-date it appears that since the said section is concerned with the subject matter of vacancy of the office of directors which is an additional occasion for vacancy other than those contained in the Companies Act, 1994 and since the entire scheme of the said Act is to bestow upon the Bangladesh Bank a strong regulatory power over the functioning and business of bank companies, it is enough if the offending director is intimated in a notice under section 17 of the Act that he has a personal liability to repay a loan of the kind described in section 17 and that on the date of notice the loan remains unliquidated upon expiry of the stipulated.. date of repayment of either the whole loan or an installment thereof. It is not necessary to describe in the notice the nature and number of document or documents on the basis of which the offending director is claimed by the lender Bank to be personally responsible for repayment of a loan or an installment. But if the offending debtor denies his personal liability to repay the loan in his written representation the Bangladesh Bank may send for the incriminating materials and confront the offending director with the same. It is before respondent No. 1 that the offending director will place all his grievances against the show cause notice and it is respondent No. I who will determine the relevance, genuineness, connection between the lender Bank’s documents and the loans in question and the liability or otherwise of the offending director.

Md. Saiful Alam alias Masudul Alam Chowdhury Vs Bangladesh Bank and others, 19 BLD (AD) 249.

Ref: 48D1R(AD)20; 45DLR(AD)20-Not applicable.

Section—17

In issuing the notices under section 17 of the Act the lender Bank acted neither as a substantive authority nor as a Court nor as a tribunal. It acted purely in an executive capacity under an authority granted by a statute if the show cause notice is issued by an unauthorised or if the allegations in the show cause notice on the face of it do not attract the mischief of section 17, a notice under section 17 can certainly be challenged in the writ jurisdiction and declared to have been issued without lawful authority and to be of no legal effect.

Mr. A.S.F. Rahman and others Vs Bangladesh Bank and others, 20 BLD (AD) 32.

Ref: Md. Saiful Alam alias Masudul Alam Chowdhury Vs. Bangladesh Bank and others, 19 BLD(1999)(AD)249—relied upon.

Section—17

The High Court Division simply does not have the jurisdiction to decide the validity of a notice under section 17 of the Act upon adjudication of documents both sides. The offending director may have a very good case to show that he has no personal liability to the lender Bank at all. But it is not for the High Court Division to determine or even hint at the offending director’s personal liability or otherwise, except on admission, when the only us before it is whether the notice under section 17 of the Act is legal or not.

Abdullah Ahsan Vs Bangladesh Bank and others, 20 BLD (AD)260.

Ref: Md Saiful Alam @ Masudul Alam Chowdhury, Vs. Bangladesh Bank and others, 19 BLD (AD) 249 [C.P.529 of 1 9991—relied.

Section—46(2)

In view of the existence of the report and recommendation it cannot be said that there was no material before the respondent No.1 to form the opinion concerning the appellant or that the said opinion was merely fanciful. So the requirement of formation of an opinion by the Bangladesh Bank has been made before directing a Director, Chairman or Chief Executive of a banking company to refrain from performing functions of his office during the pendency of the enquiry proceedings against him for his removal from office under section 46 of the Act. Such opinion must be formed on the basis of relevant materials on record and not fancifully without any such material nor on the basis of irrelevant materials.

Abdur Rahim Chowdhury Vs Bangladesh Bank and others, 20 BLD (AD) 170.

Section—46 and 47

Whether there was sufficient good reason to form an opinion cannot be looked into by the Court as that would be substituting the opinion of the Bangladesh Bank. The Court cannot accept the contention that the Bangladesh Bank could not have arrived at an opinion or satisfaction to suspend the petitioner on a single transaction.

Abdur Rahim Chowdhury Vs Bangladesh Bank and others, 20 BLD (AD) 170.

Sections—64 and 65

A relief to which one is not entitled to directly cannot be given to that person indirectly. The winding up of a bank can only be done as provided under sections 64 and 65 of the Bank Company Act 1991 and cannot be wound up at the instance of the writ petitioner in an indirect manner. (Per Mahmudul Amin Choudhury, CJ)

BRAC v. Professor Mozaffar Ahmed and others, 22 BLD(AD)41

Section—144

Family

It includes among others, ‘ ... any other persons dependent of such person.’ In the instant case ‘such person’ is BRAC and the rest of the subscribers are its dependents. In other words BRAC itself holds 99.97% of the shares in the BRAC Bank, the balance being subscribed and held by its employees and members of the governing body.

Professor Muzaffar Ahmed Vs Bangladesh Bank & others, 20 BLD(HCD)235

Sections—144 and 121

Waiver of restriction

Waiving the restriction imposed under section 14A regarding holding of not more than 10% shares by a person, company, members of a family, was published on 3 February, 2000, after the issuance of the Rule in this writ petition on 12.12.1999. By this gazette notification, an undue favouritism has been shown and discrimination has been made, in favour of BRAC Bank, only to remove its incapacity to operate, which the authority became aware of, after the issuance of the Rule in which the letter of ‘no objection’ itself and the registration of the bank and the certificate of incorporation have been challenged. Apparently, on the days the letter of ‘no objection’ was issued i.e., 4 April 1999 and the Bank was registered on 20 May, 1999, there was no waiver and BRAC Bank did not meet the initial requirement for incorporation.

Professor Muzaffar Ahmed Vs Bangladesh Bank & others, 20 BLD (HCD) 235.

Citation: 4ADC 649

Subject: Bank Company

Delivery Date: 2018-11-19

Bank Company (Amendment) Act, 2003 Section 15(Ka Ka) Bank Companies Act, 1991 Section-45(l)

Directing that within 120 days from the date of drawing up of the order, the 20th Annual General Meeting (AGM) of City Bank Ltd, the respondent No. 2, is to be held excluding the agenda regarding election of directors. Bangladesh Bank vs. Sk. Abul Hossain and others (Md. Tafazzul Islam J)(Civil) 4ADC 649

Citation: 3ADC 189

Subject: Banlgadesh Civil Service

Delivery Date: 2018-11-18

Banlgadesh Civil Service Recruitment Rules. Its application and jurisdiction of court.

Writ petition was not maintainable as it related to enforcement of terms and conditions of service and right to promotion and their remedies lie before the Administrative Tribunal which has the exclusive jurisdiction over such matters. M. M. Mahboob & Bangladesh vs SK. Abdur Rashid (Syed J.R. Mudassir Husain)(Civil) 3ADC 189

Citation: 3ADC 360

Subject: Board of Intermediate and Secondary Education

Delivery Date: 2018-11-19

Board of Intermediate and Secondary Education Ordinance, 1961 (Ordinance No. 33 of 1961)

Under Section 35 of the Board of Intermediate and Secondary Education Ordinance, 1961 (Ordinance No. 33 of 1961 ) read with Section 2(d)(VI), of the Public Retirement Act, 1974 the age of retirement of the respondents being permanent employees of the Board is 60 and not 57 years, therefore, the impugned memo were issued illegally and without lawful authority. Chariman, BISE Jessore vs Golam Quddus & anr (6)(Amirul Kabir Chowdhury J)(Civil) 3ADC 360

Citation: 4ADC 885, 3ADC 809

Subject: BOESL Employees Service Regulation,

Delivery Date: 2018-11-19

BOESL Employees Service Regulation, 57(B)

Seeking declaration that the order dated Herein, terminating his service is illegal and void and also for further declaration that he being still in service as Deputy General Manager is entitled to emolument and other service benefits. Rafique Ahmed vs Managing Director, Bangladesh Overseas (Md. Tafazzul Islam J) (Civil) 4ADC 885

Breach of contract, Praying of a decree for recovery of salary and other benefits

Praying for a decree for recovery of Tk. 18,92,500/- as salary and other benefits for breach of contract and for a deree for recovery of compensation of Tk. 50,000/- for causing humiliation and lowering down his prestige in the society. Md. Alimuzzaman Khan vs Mohammad Golam Kibria (M. M. Ruhul Amin J)(Civil) 3ADC 809

Citation: 4ADC 944

Subject: Brick Burning

Delivery Date: 2018-11-19

Brick Burning (Control) Act, 1989 by the Act 17 of 2001, Sections 4 and 6 Brick Burning (Control) Amendment Act, 2001

To cancel the licence of the petitioner should not be declared to have been passed without lawful authority and is of no legal effect. Md. Tajul Islam vs. The Government of the People's (Republic) of Bangladesh (Syed J.R. Mudassir Husain CJ)(Civil) 4ADC 944

Citation: 3 ADC 692

Subject: Challenged the result of the election filing

Delivery Date: 2018-11-19

Challenged the result of the election filing an application under Article 49 of the Representation of the People order, 1972

The Representation of the People (Amendment) Ordinance, 2001, Saber Hossain Chowdhury vs Bangladesh Election Commission, Election Commission Secretariat (Amirul Kabir Chowdhury J) (Civil) 3 ADC 692

Citation: 4ADC 252

Subject: Department of Shipping

Delivery Date: 2018-11-20

Department of Shipping (Engineer and Ship Surveyor of Inland Ships) Recruitment Rules, 1980

We have held that this contention of the writ-petitioner has no merit since the amendment was made at a time when writ-petitioner was not a contender of the post in which he was appointed and he joined in 1995. It is the contention of the learned Counsel that lapse of time is no bar in challenging legality of certain law or the Rules. The said contented would be of worth consideration in a case where the person complaining was affected by the amendment in the law. But in the instant case there in no such situation. It may be mentioned in the instant case amendment in the schedule of the Rules of 1980 was made in 1986 and the writ petitioner having had the notice thereof joined in his service in 1995. So the aforesaid contention in the background of the facts of the instant case is of no merit. Md. Muinuddin Zulfiquer vs. Government of the People's Republic of Bangladesh (Md. RuhulAmin J) (Civil) 4ADC 252

Citation: 5ADC 901

Subject: Druta Bichar

Delivery Date: 2018-11-20

Druta Bichar Tribunal Ain, 2002, Sections 5 and 6

An under trial prisoner is also entitled to get speedy trial without being languishing in jail without trial for an indefinite period and it is a fundamental right of an under-trial prisoner to get speedy trial and thus the High Court Division erred in law in granting stay against the spirit of law and intention of the legislature in enacting the Act No.28 of 2002. The learned Attorney General further submitted that section 5 and 6 of the Act 28

/naving been challenged in writ yrction and the said two sections A been found to be the valid law and /ie decision to that effect has been reported in 55 DLR 636, as such, High Court Division ought not to have granted stay of proceedings while issuing the rule challenging the vires of certain provisions of the law. Abdul Kader Mirza vs. Bangladesh represented by the Secretary Ministry of Law (Mohammad Fazlul Karim J) (Civil) 5ADC 901

Citation: 4ADC 507, 4ADC 514

Subject: Government and Autonomous Bodies Employees Benevolent Fund

Delivery Date: 2018-11-24

Government and Autonomous Bodies Employees Benevolent Fund and Group Insurance Ordinance, 1982 (ordinance No. XXXIX of 1992)

The question involved in the appeal is whether on the date of death i.e. September 11, 1969 benefits accrued under (E.P.) Ordinance No.III of 1968 and (E.P.) Ordinance No.XI of 1969 i.e. benefits of benevolent fund and group insurance to the plaintiffs' predecessor having not been finalized till the date of promulgation of the Ordinance No.XXXIX of 1982 where by upon repealing (E.P.) Ordinance No.III of 1968, (E.P.) Ordinance No.XI of 1969 and Act II of 1969 the law relating to benefits of benevolent fund and group insurance of the Government servants and the employees of the Autonomous Bodies was re-enacted with benefits different from previous laws and as such benefit that accrued on September 11, 1969 in favour of the plaintiffs on the death of their father having been finalized after the enactment of the Ordinance No. XXXIX of 1982 the plaintiffs would be entitled to the benefits of benevolent fund and group insurance as per the provisions of the Ordinance No. XXXIX of 1982. Director and Secretary Ministry of Establishment Board of Trustees vs. Md. Hossain and others (Md. Ruhul Amin J) (Civil) 4ADC 507

Case of the plaintiff that he has been removed from the post of Head Master without serving any notice and that on untrue allegation.

The learned Advocate-on-record failed to point out any infirmity in the judgment of the High Court Division calling for interference by this Court. The admitted position is that the School in question is a Non-Government Private Primary School established by the local people and therein the plaintiff was the Head Master. The terms and conditions of the service of plaintiff in the School was not regulated by any legal instrument, rather his stay in the school as Head Master was dependent on the decision of the Managing Committee formed by the local people who established the School. The service of the plaintiff was terminated upon serving show cause notice, to which he did not reply. Md. Abdul Mazid Shah vs. Md. Abdul Wahab and others (Md. Ruhul Amin J)(Civil) 4ADC 514

Citation: I ADC 224, 3ADC 695, 2ADC 905, 2ADC 981, I ADC 562, I ADC 165

Subject: Government Servants

Delivery Date: 2018-11-25

Government Servants (Special Provisions) Ordinance, 1979 (Ordinance XI of 1979). Section 5, 6, 3(b)

The delinquent officer and the competent authority to dismissed him having had not given personal hearing to respondent No.l the officer of the respondent No.l's category, before issuing order of dismissal, the same was unsustainable in law as because the previous Secretary although gave personal hearing to respondent No.l but he did not record the final decision in any respect. Janab Qamrul Islam Siddique vs Janab Saber Ahmed (Md. Ruhul Amin_f J) (Civil) I ADC 224

Government Servant (Discipline and Appeal) Rules, 1985, Rule 11(3) of the

In Halsbury's Laws of England, 3rd Edition Volume-14 page 637, "Waiver is the abandonment of a right, and is either express or implied from conduct. A person who is entitled to the benefit of a stopreater in a contract or of a statutory provision may waive it" Government of Bangladesh vs A.K.M Fazlul Haque (M. Fazlal Karim J)(Civil) 3ADC 695

Government Servants Discipline and Appeal Rules, 1985,

In view of the provisions of section 6 (3) as quoted above it was within the juris-diction in the Administrative Appellate Tribunal in altering the major penalty of
dismissal from service to the reduction in rank of the respondent (13).

Bangladesh vs Md. Idrish Miah (Md. Ruhul Amin J) (Civil) 2ADC 905

Since the proceeding was initiated with the consultation of the Supreme Court, the proceeding culminated in the final order of compulsory retirement upon holding the respondent guilty, we are of the view that once the consultation having been made while imitating the proceeding no further consultation with the Supreme Court is necessary to pass any final order. Bangladesh & Ors vs Champak Kishore Roy (Mohammad Fazlul Karim J)(Civil) 2ADC 981

Rule 3(d)III, 7 (1) (b) (2) (c)

Respondent was dismissed from service on the ground that he has a persistent reputation of being corrupt but as it appears in the charge there is no particulars in this regard and further there is nothing in the record to show that an statement of allegations containing particulars in this regard were sent to the respondent along with the charge to enable the respondent to refute that. Bangladesh & ors. vs Sheikh Munsur Rahman (Md. Tafazzul Islam J)(Civil) I ADC 562

Government Service (Discipline and Appeal) Rule, 1985

The authority imposing any punishment upon a delinquent staff has a duty to see that he has been dealt with in accordance with law and fol lowing the principles of natural justice. B.M.RT.T & Others vs MiicAbul Khair (Civil) I ADC 165

Citation: 5ADC 271

Subject: Indian Companies

Delivery Date: 2018-11-25

Indian Companies Act 1956,Section 397

Seeking amongst others, appointment of auditors to audit the accounts of the

company since its inception............ (2)

HBS Association (Pvt.) Ltd. vs. professor Shahabuddin Khaled Chowdhury (Md. Tafazzul Islam J) (Civil) 5ADC 271

Citation: 5ADC 304

Subject: Khulna City Corporation

Delivery Date: 2018-11-25

Khulna City Corporation Ordinance, 1984

Declaration that the order contained in memo dated 18.4.2000 passed by the Ministry of land and the order contained in memo dated 15.5.2000 passed by the Commissioner, Khulna Division, Khulna and order contained in memo dated 12.6.2000 passed by the Assistant Commissioner (Land) are illegal, collu-sive,inoperative and not binding upon the plaintiffs and for permanent injunction against the defendants restraining them from taking over the possession of the Bazar and evicting the plaintiffs and other businessmen and demolishing the Bazar....(2) Robiul Islam and other vs. Secretary Ministry ofLand(Md.Joynul Abedin J) (Civil) 5ADC 304

Citation: 2ADC 768

Subject: Mujibnagar Employees

Delivery Date: 2018-11-26

Mujibnagar Employees (Conditions of Service) Rules,1980.

Rules can as well be made by the President under Article 133 giving retrospective effect in the same manner like a law passed by the Parliamen. M. M. Shahidur Rahman & Abdul Majid Sarkar vs Bangladesh (A.T. M. Afzal J)(Civil) 2ADC 768.

Citation: 13 BLC (AD) 77

Case Year: 1986

Subject: Municipal Corporation (Taxation)

Delivery Date: 2018-07-03

Municipal Corporation (Taxation)

Rules, 1986

Rule 20(3)(a)(ii)—

Annual valuation is to be assessed on the gross annual rental of the building minus two months' rent as maintenance allowance. Hence the order of the Additional Commissioner, Chittagong Division, Chittagong fixing the annual valuation at Taka 2 per square foot is without any legal basis.

City Corporation, Chittagong vs Sonali Bank 13 BLC (AD) 77.

Citation: 4ADC 539, I ADC 32, J ADC 33, 1 ADC 271

Subject: Muslim Family Laws

Delivery Date: 2018-12-03

The Muslim Family Laws Ordinance, 1961, Sub-Section (2) Section 6

That the sentence awarded was severe and harsh and that having regard to the nature of the offence and reality of the social life sentence of the convict may be reduced on the above and also on compassionate ground. Md. Laisur Rahman vs. Most Nay ma Ara Begum and another (Md. Ruhul Amin J) (Criminal) 4ADC 539

Section 6

Appellant took 2nd wife without obtaining necessary permission. The plea of the appellant was that he obtained necessary permission from the Arbitration Council but the same was not accepted by the court since the Chairman of No. 6 Omarpur Union Parishad had no juris-dction to entertain the petition under sub-section (2)of section 6 of the Muslim Family laws Ordinance, 1961 to grant permission for 2nd marriage Md. Laisur Rahman vs Most. Nayma Ara Begum (Md Ruhul Amin J) (Criminal)!ADC 25

Section 6(5)

Farida Begum without obtaining permission of the Arbitration Council as per provisions in Section 6 of the Ordinance. The learned Counsel having realized that the offence under Section 6(5) of the Ordinance 1961 is not com-poundable and as such even though the appellant and the respondent No. 1 have arrived at compromise, but for that the appellant cannot be acquitted upon allowing the appeal. In that situation learned Counsel prayed for dismissal of the appeal upon reduction of the sentence to the extent of the period already served out. The submission so made in the background of the development that has taken place with the lapse of time in our view merits consideration. Khandaker Abdul Hannan vs Mosammat Savara Begum (Md Ruhul Amin J)( Criminal) I ADC 32

Section 6(5) (b)

In the background of the facts of the case as well as upon compassionate view of the matter if the substantive sentence of the convict is reduced to the period already under gone upon maintaining the sentence of fine the ends of justice would best be mad. Md. Laisur Rahinan vs Most. Nayma Ara Begum (Md Ruhul Amin J) (Criminal) J ADC 33

Section 6 (5) (b)

Arbitration Council has no jurisdiction to grant permission to take 2nd wife Md. Laisur Rahman vs Most. Nayma Ara Begum (Md Ruhul Amin J) (Criminal) 1 ADC 271

Citation: 21 BLT (HCD) 105

Case Year: 1974

Subject: Muslim Marriage and Divorces (Registration)

Delivery Date: 2018-08-01

Muslim Marriage and Divorces

(Registration) Act, 1974

Section- 4 read with Muslim Marriage and Divorces (Registration) Rule, 1975

Rule - 5A Direction to issue licence on regular basis

In view of Rule 5A if a Nikah Registrar acts for at least three years on temporary basis then subject to Rule 10 he will be eligible to be licenced on regular basis. Since the petitioner was appointed on 27.1.2004 by the respondent No.l and he successfully performed his functions. Hence the petitioner is entitled to have a permanent Nikah Registrar licence under Rule 5A.

Md. Nazrul Islam Talukder Vs. Govt. of Bangladesh & Anr 21 BLT (HCD) 105.

Citation: 4ADC 557, 4ADC 560, 5 ADC 678

Subject: Muslim Marriage and Divorces

Delivery Date: 2018-11-26

Muslim Marriage and Divorces (Registration) Rules 1975

Cancelling the temporary appointment of the petitioner as the Nikah Registrar and appointing the respondent No.4 as permanent Nikah Registrar of No.2 Khan Marich Union under Bhangoora Upazila District Pabna as contained in Annexure-F to the writ petition Md. Tarique Bin Shukur vs. Government of the People's Republic of Bangladesh (Mohammad Fazlul Karim J) (Civil) 4ADC 557

Muslim Marriage and Divorces (Registration) Rules 1975, Rule 6

From the above, it is clear that the petitioner is not even qualified to be appointed as Nikah Registrar. There is, however, no provision either in the Muslim Marriages and Divorces (Registration) Rules, 1975 to appoint a person not having the above educational qualification. Even the concerned authority does not have such power. Farooq Ahmed vs. The Government of the People's Republic of Bangladesh (Syed J.R. Mudassir Husain CJ) (Civil) 4ADC 560

The Muslim Marriages & Divorces Rules, 1975, Rule 6(1)

Requiring him to show cause within seven days as to why his Nikah registry licence should not be cancelled. Hafez Md. Bilal patwary vs. Government of Bangladesh (M.M. Ruhul AminJ) (Civil) 5 ADC 678

Citation: 8 BLC 34, 10 BLC (AD) 134, 9 BLC (AD) 248

Case Year: 1975

Subject: Muslim Marriages and Divorces Registration

Delivery Date: 2018-05-20

Muslim Marriages and Divorces

Registration Rules, 1975

Rules 3, 4, 5, 6, 10, 18, 19 & 34—

Petitioner has challenged the second proviso to section 4 of the Muslim Marriages and Divorces (Registration) Act, 1974 and the Muslim Marriages and Divorces (Registration) Rules, 1975 particularly Rules 3, 4 and 10 and the order dated 3-2-2000 appointing respondent No. 6 as Nikah registrar for three Unions of his Nikah Registration area and also to strike down the second proviso to section 4 of Act No. LII of 1974 and the Rules framed thereunder.

The existing Rules of 1975 is inept, in cohesive, inadequate, ambiguous and ineffective having tendency to pick and choose policy, arbitrariness, absurdities and require to be remodeled and redrafted in the given situation and demand of time with sound thought and modern look with reference to Articles 10, 28(2) 29(2) 27, 31 and 40 of the Constitution and the warrant of Procedure. Thus the Muslim Marriages and Divorces (Registration) Rule, 1975 is struck down being unconstitutional.

Ruhul Mannan Helali. vs Bangladesh 8 BLC 349.

Rules 4, 5 and 10—

The Government is empowered to extend, curtail or otherwise alter the area of jurisdiction of a Nikah Registry subject to the maximum area provided in the Rules.

Kazi Imamuddin Bhuiya vs Government of Bangladesh and others 10 BLC (AD) 134.

Rule 10—

On the establishment of the Gafargaon Municipality the area which was previously a part of No. 4 Saltia Union Parishad became the area of the Gafargaon Municipality. The appointment of the appellant as Nikah Registrar was in respect of new area which had no reference to or connection with the area wherein the respondent 1 is acting as Nikah Registrar. The appellant has been appointed as Nikah Registrar of the area of the newly established Municipality. No area of the respondent 1 wherein he is acting as Nikah Registrar after the formation of the Gafargaon Municipality has been curtailed.

Saiful Islam (Md) vs Md Abdur Rahim and other 9 BLC (AD) 248.

Citation: 4ADC 517

Subject: Muslim Marriages and Divorces

Delivery Date: 2018-11-26

Muslim Marriages and Divorces (Registration) Rules 1995, Rule 5

If all the unions of the petitioner are curtailed and the respondent Nos.3-5 are appointed as Nikah Registrar of the said unions the petitioner will lose his entire area which will amount to cancellation/revocation of licence of the petitioner without any offence whatsoever committed by the petitioner. As a local Member of the Parliament, Mr. Mahbubur Rahman is a competent person to issue the D.O. letters as per provisions of Rule 5 of the Muslim Marriages and Divorces (Registration) Rules 1995.

A settled law that the respondent No.l, the Government being the appointing authority of the Nikah Registrars for particular area the Government has also right to curtail the area. Kazi Mohammad Fazlur Rab vs. The Government of the People's Republic of Bangladesh represented by the Secretary (Syed J.R. Mudassir Husain CJ)(Civil) 4ADC 517

Citation: 4ADC 788, 4ADC 790

Subject: Nari-o-Shishu Nirjatan

Delivery Date: 2018-11-26

Nari-o-Shishu Nirjatan Ain, 1995, Section 8 and 9 (a) (b) (c)

The High Court Division upon hearing the learned Counsels for the parties and perusing the record came to the finding that although section 20 of the Ain laid down a period of 90 days for conclusion of trial with a further provision in Sub-section (3) of section 20 to conclude the trial within an extended period of thirty more days for reasons. Md. Delwar Hossain vs. The State, represented by the Deputy Commissioner (M. M. Ruhul Amin J) (Civil) 4ADC 788

The pre-emptee petitioner presuming that the respondent No.l was going to file a preemption case against the above kabala dated 5.2.1982 got an area of 2.48 acres of land transferred in their favour from Malekun by a deed of heba-bil-ewaz dated 20.3.1982 and so the said deed dated 20.3.1982 is a colourable transaction for defeating preemption. Haji Ebad Ali Akanda vs. Haji Basiruddin Akanda (Md. Tafazzul Islam J) (Civil) 4ADC 790

Citation: 3ADC 48, 3ADC 507, 3ADC 57, 3ADC 589, 3ADC 828, 3ADC 834, 4ADC 82, 4ADC 622, 4ADC 1009

Subject: Nari-O-Shishu Nirjatan

Delivery Date: 2018-12-03

The Nari-O-Shishu Nirjatan (Bishesh Bidhan) Act (XVII of 1995) Section 6(4), 32

The accused did not deny as to the custody. The explanation given by them has already been found to be fake and concocted. As such we cannot but find that the accused cannot be absolved of the quilt. Md. Moynul Hoque & Md. Abdus Satter vs The State (Amirul Kabir Chowdhury J)(Criminal) 3ADC 48

Section 29

Section 29 of Nari-O-Shishu Nirjatan (Bishes Bidhan) Ain, 1995, hereinafter referred to as the Act submits that under the aforesaid provision of law, the case against the petitioner cannot be tried by the Special Tribunal under the Ordinance in view of repeal of the said Ordinance on 17.7.1995. Abul Hashem vs The State (Amirul Kabir Chowdhury J)(Criminal) 3ADC 507

Section 9

Case ended in Final Report submitted by the police finding the case arising out of mistake of fact and stating, inter alia, that no one kidnapped the girl whose statement under section 161 of the Code of Criminal Procedure also bears testimony to the fact that this is not a case of kidnapping or of any other offence charged and as such the impugned judgment and order is bad in law and is liable to be set aside. Md. Gholam Mostafa alias ors. vs The State (Amirul Kabir Chowdhury J)(Criminal) 3ADC 57

Section 7,9(1), 30

The High Court Division Committed error in the decision ignoring the fact that out of 15 witnesses, none, including the informant and the victim herself or even the Medical Officer who examined the victim, supported the prosecution case and P.W. 15 being the investigating officer is formal witness who, therefore, proved nothing against the accused and that the High Court Division committed error in not considering that in the statement made before the court, the victim or her mother deposed nothing against the petitioner and the statement, if any, made before the police or ever before a Magistrate cannot legally be relied on to pass an order of conviction inasmuch as no witness deposed to that effect in the court. Md. Wasim Mia vs The State (Amirul Kabir Chowdhury J)(Criminal) 3ADC 589

Section 9(1)

It is apparent from the record that there appears a reasonable ground for believing that the accused appellant has been guilty of an offence under Section 9(1) of the Nari-o-Shishu Nirjatan Daman Ain, 2000. Thus we find no merit in this appeal. Md. Harun-or-Rashid @ Harun vs Md. Halim Uddin and another (Amirul Kabir Chowdhury J)(Criminal) 3ADC 828

Section7 and 9(1)

Appeal against the judgment and order dated 03.08.2003 passed by the High Court Division in Jail Appeal No. 368 of 2003 allowing the appeal, setting aside the order of conviction and sentence awarded upon the accused respondent under Sections 7 and 9(1) of Nari-0 Shishu Nirjatan Damon Ain, 2000 (in short Ain) by the learned Judge Nari-O-Shishu Nirjatan Damon. The State vs Md. Shahidul Islam @ H. M. Shahid (Amirul Kabir Chowdhury J) (Criminal) 3ADC 834

Section 7/9(l)/30

High Court Division committed error in the decision ignoring the fact that out of 15 witnesses, none, including the informant and the victim herself or even the Medical officer who examined the Victim, supported the prosecution case and P.W. 15 being the investigating officer is formal witness who, therefore, proved nothing against the accused and that the High Court Division committed error in not considering that in the statement made before the court, the Victim or her mother deposed nothing against the appellant and the statement, if any, made before the police or even before a Magistrate cannot legally be relied on the pass an order of conviction inasmuch as no witness deposed to that effect in the court and that P.W. 4 the medical officer in his evidence clearly stated that in his opinion there was no sign of physical assault or forceful sexual intercourse. But the High Court Division relying upon the words "Hymen Ruptured" ignoring the testimony of the Medical Officer (P.W. 14) passed the impugned judgment without considering the fact that on attaining puberty "Hymen" may become ruptured and there being no sign of rape no offence has been disclosed as contemplated under Section 9(1) of the Ain.

Md. Wasim Mia vs. The State, represented by the Deputy Commissioner, Netrokona (Amirul Kabir Chowdhury J) (Criminal) 4ADC 82

Section ll(Kha) and 30

On the plea of a trifling matter they started altercations and at one stage at the instigation of other accused (including the accused appellant Jalal) the husband of his niece demanded Tk. 1,00,000/- as dowry and on her refusal to pay the sum she was assaulted seriously causing injuries. Jalal alias Md. Jalal vs. The State (Amirul Kabir Chowdhury J) (Criminal) 4ADC 622

Section ll(Ka)/30

Petitioner at the ill-advice of his relations and the other accused persons on different dates demanded dowry from her and she paid the amount of dowry. The accused husband also used to torture her physically and mentally for dowry. Sylvia Akter Nazma vs. M.M. Ishak (M.M. Ruhul Amin J) (Criminal) 4ADC 1009

Citation: 4ADC 501

Subject: Negotiable Instruments

Delivery Date: 2018-11-26

Negotiable Instruments Act, 1882

The Bank refrained from making payment of letter of credit value of the reasons of discrepancy of presentation as per terms and conditions of the letter of credit which is in consonance with the provision of Article 16 of the Uniform Customs and Practice of Documentary Credits shortly known as "UCPDC" and accordingly, the Bank did not commit any illegality in not paying the amount under the letter of credit contrary to its terms embodied therin. Jamuna Knitting and Dying Ltd vs. Arab Bangladesh Bank Ltd (Mohammad Fazlul Karim J)(Civil) 4ADC 501

Citation: 4ADC 481

Subject: Non-Agricultural Urban Areas Tenancy

Delivery Date: 2018-11-26

Non-Agricultural Urban Areas Tenancy Act of 1947

That from the evidence of D.W.4 that by Mahabir Durga Proshad was in possession that on or before 25.9.1956 which statement is totally infractuous with this claim. He purchased from Lai Brothers on 25.9.1956 and not from Mahabir Durga Proshad. This statement clearly provided that he did not got possession from Lai Brothers on 25.9.1996 and in the written statement Ext. 12 also he admitted that he did not got possession till 23.9.1957 which conclusively proved that the defendant no. 2 did not possession of the suit land at any point of time and the defendant no.l was inducted in possession by Durga Proshad as claimed by the plaintiff and not by the defendant no. 2. Aplatun Nessa Khatun and others vs. Ramprashed Tribedi (Mohammad Fazlul Karim J) (Civil) 4ADC 481

Citation: IADC 124, 2ADC 918

Subject: Parliament Secretariat Officers and Employees

Delivery Date: 2018-11-27

Parliament Secretariat Officers and Employees Recruitments Rules, 1982 (shortly the Rules, 1982)

But due to imposition of some arbitrary and discriminatory conditions only candidates of certain districts were eligible to apply and other candidates of certain districts were not eligible to apply for the posts advertised. The impugned advertisements purpoting to debar the applicants coming from certain districts from applying for the posts advertised amounts to denial for their to have the equal opportunity. ...(2) The conditions for maintaining the district quota is based on the different circulars of the government and the same is not violative of Article 29 of the Constitution, rather it serves the purpose of securing adequate representation of the backward section of the citi- disposed of finally, onus of proof is spirited and spitted up not fixed like criminal cases. Cinmoy Chowdhury vs Sree Mridul Chowdhuiy (Civil) IADC 124

Parliament Secretariat Officers and Employees Recruitments Rules, 1982 (shortly the Rules, 1982)

But due to imposition of some arbitrary and discriminatory conditions only candidates of certain districts were eligible to apply and other candidates of certain districts were not eligible to apply for the posts advertised. The impugned advertisements purpoting to debar the applicants coming from certain districts from applying for the posts advertised amounts to denial for their to have the equal opportunity. ...(2) The conditions for maintaining the district quota is based on the different circulars of the government and the same is not violative of Article 29 of the Constitution, rather it serves the purpose of securing adequate representation of the backward section of the citi-

Partition Suit, it's scope and maintainability and onus of proof.

In a partition suit for immovable property all the incidental questing of title, however, complicated it may be. can be decided and Parties may adduce Additional Reply, if necessary

It is therefore fit and proper in the interest of justice that the writ petition should be heard and disposed of on merit by the High Court Division. The petitioner respondent may still file an affidavit in reply and if the appellants so think they may also file a supplementary affidavit in opposition to bring their materials in reply to the writ petition up

to date............. (10). Bangladesh vs Md.

Abdul Quader (Mustafa Kamal J)(Civil) 2ADC 918

Citation: 1ADC 465, 3ADC 34, 3 ADC 37

Subject: People's Representation

Delivery Date: 2018-11-27

People's Representation Act, 1951, Section, 86 117.

It is true that the Representation of Public Order, 1972 is a special law for deciding the election dispute chapter -5 of the Representation of the said order deals with election dispute but in view of the decisions as cited above, we are of the view that as regard presenting the Election Petition with deposit of Tk. 2000/- is a must and it is mandatory but the mode of depositing the said cost by the petitioner alone is not mandatory rather it is directory. Mr. Glasuddin Quader Chowdhurv vs A.B.M. Fazie Karim Chowdhurv (Syed J. R. Mudassir Husain J)(Civil) 1ADC 465

Permanent injunction for restraining the defendants from interfering with the possession of the plaintiff in the suit land.

The Court cannot disentitle the plaintiff of a decree for permanent injunction if he can prove possession unless in due process of law and could exercise his right of possession restraining everybody including the real owners. In a suit for permanent injunction the Court need not enter into disputed title except to the extent that it would help the Court in finding which of the parties have prima facie title and exclusive possession. Jobayer Hossain vs Noor Hafez (Mohammad Fazlul Karim J) (Civil) 3ADC 34

The trial court in consideration of the evidence found that D. W. 1 could not bring home the claim of granting dakhi-las by the predecessor of the plaintiffs in favour of the defendants predecessor. The trial court as well as the court of appeal below disbelieved D.Ws. 1 and 2 in this regard. The kabuliyats produced by the defendant appellants being registered documents much emphasis has been given by the learned counsel of the appellants and also the trial Court and the court of appeal below. But it will suffice to say that the kabuliyats without any patta cannot give rise to title. In the instant case no patta could be produced by the defendants. Execution of kabuliyats unilaterally as produced by the defendants, do not give the defendant appellants any semblance of title. Mohiuddin vs ShwkatAli (Amirul Kabir Chowdhury J)(Civil) 3 ADC 37

Citation: 1ADC 409, 3ADC 473

Subject: Power Development

Delivery Date: 2018-11-27

Power Development Board (employees) Service Rules 1982.

The submission advanced by the learned Deputy Attorney-General that the said grounds of non-supply of copies of the inquiry was not taken before the High Court Division is of no consequence. Since this is a question of law and may be agitated at any stage of the proceedings. Md. Abdul Mazid, Md. Monir Ahmed vs The Secretary Ministry of Energy and Mineral Resoruces ((Md. Faziul Haquel)(Civil) 1ADC 409

Prayer for probate in respect of the will of her husband.

In First Appeal (Probate) No. 246 of 1996, the said appeal was required to be disposed of on merit by the High Court Division for disposal in accordance with law in place oVThe probate case. Kanai Lai Roy vs Swaraswati Roy alias ors. (Md. Ruhul Amin J')(Civil) 3ADC 473

Citation: 3ADC 896

Subject: Provisions of the Constitution

Delivery Date: 2018-11-27

Provisions of the Constitution Article 96(6), 48(2)

Article 96(5) of the Constitution of the

People's Republic of Bangladesh brought the matter to the notice of the President of the Republic by letter dated 20.10.2003. The President of the Republic directed Supreme Judicial Council to inquire into the matter and the Supreme Judicial Council in short Council held inquiry and submitted report stating, inter alia, " though the allegations against Mr. Justice Syed Shahidur Rahman are not proved beyond doubt but on consideration of the facts and circumstances and the materials on record in their entirety it cannot be said that there is total absence of material in support of the allegations nor can it be said that the allegations are without any basis. A concerned member of the civil society felt that the issues raised in the writ petition having constitutional ramifications and affecting public interest and fundamental rights of the citizens this Division should be moved and hence filed the instant petition for leave. Md. Idrisur Rahman, Advocate, Supreme Court of Bangladesh, 42/1, Ka Segun Bagicha, Dhaka-vs-Syed Shahidur Rahman and others(Amirul Kabir Chowdhury J) (Civil) 3ADC 896

Citation: 3ADC 763

Subject: Requisition and Property

Delivery Date: 2018-11-28

Requisition and Property Act, 1949

Notice of acquisition was published in the official Gazette on 28.03.1968 and as such the land absolutely vested in the Government free from all encumbrances and the right, title and interest of the original owners extinguished. Wega Fashion Sweater (PVt.) Ltd. represented by its M.D. Nurul -vs- Syed Sajeda Hossain & others (M.M. Ruhul Amin J) (Civil) 3ADC 763

Citation: 3ADC 348, 2ADC 964, 4ADC 168, 4ADC 286, 4ADC 572, 5ADC 342, 5ADC 789

Subject: Service Regulation

Delivery Date: 2018-11-28

Service Regulation of 6(2) 1997

Violation of regulation No.6 (3) whic incorporates the principle of seniority cum-merit for promotion. Delegation of power once made shal continue unless withdrawn/rescinded. Therefore, by a subordinate legislatio i.e. service regulations of 1997 th power conferred by the P.O. 10 of 1972 cannot be taken away. "So far as suitability or promotion to particular post is concerned, the sol

judge is the Government and Courts are unable to interfere except possibly in a case of proved malafides." We have already found that delegation of power made under Article 27 P.O. 10 of 1972 made in 1974 was neither withdrawn nor rescinded till now and in the service regulations of 1997 there is no specific provision for delegation of power afresh by the Board to the Managing Directors. We accordingly hold that delegation of power made in 1974 still continues. We have also found that under regulations 6 (3) seniority-cum-merit is the criteria for promotion and seniority alone is not the criteria for promotion (Regulation 6 (2)). We have also found that promotion in service cannot be claimed as a matter of right but a person has a right to be considered for promotion. Bangladesh Shipping Corporation & others vs. Mohammad Hossain & others (M.M. Ruhul Amin J)(Civil) 4ADC 156 i.e. whether there was surrender by Jairuddin his korfa tenancy to Kuran Mondal under whom he was a korfa tenant elaborately but for that it can not be said that High Court Division while setting aside the judgment of the appellate Court did not consider the material evidence. We find from the judgment under appeal the said Division in fact considered the issue involved in the suit i.e. the question of surrender by Jitu Mondal in favour of Kuran Mondal and in the background of the materials on record held that appellate Court did not advert to the findings and decisions of the trial Court and thereupon did not reverse the finding of the trial Court based on evidence. In our view High Court Division was not in error in holding that from the defendants' side evidence was lacking to establish the case of surrender by Jairuddin in favour of Kuran Mondal. Md. Siraj Mondal @ Md. Sirajuddin Mondal vs Miration Nessa (Md. Ruhul Amin J) (Civil) 3ADC 348

any finding of fact of the trial court under section 25 of the said Act the High Court Division is to come to finding that such finding of the trial Court

suffers from any error of law.......... (6) Md.

Nurul Islam vs Md. Ali Hossain Miah ors (Mohammad Ahdur Rouf J)(Civil) 2ADC 964

Section 25

The suit was filed are that premises in suit belonged to plaintiffs' predecessor Mir Baksha Miah and the said premises was let out to the defendants on November 14, 1960 at monthly rental basis. Kazi Md. Abdul Kuddus and another vs. Mst. Kaimon Bewa and others (Md. RuhulAmin J)(Civil)4ADC 168

Section 25

Found that the postal money order was sent on 13.9.1991 for the second time in the name of the plaintiff no.2 i.e. obviously one of the heirs of the deceased landlord. Thus we find force in the submission of the learned Advocate for the appellants that there was sufficient materials on record to uphold the finding of the trial court that the defendants defaulted in the payment of rent. The legal position is that where evidence has been duly placed before the trial court and it has decided the suit on merit the revisional court has no power to remand by shirking its duty particularly solely for the purpose of writing the judgment afresh. This appeal, therefore, must succeed. Hosna Ara Begum & ors vs. Montaj Ali & ors (Mohammad Gholam Rabbani J) (Civil) 4ADC 286

Section 25

The petitioner as defaulter and that the suit premises is bonafide required by the plaintiffs for their own business and that the point raised by the learned Counsel for the petitioners has already been considered by Courts below and decision given thereof inasmuch as the defendant No.3 the said owner of l/6th share accepted the decree of the trial Court and did not proceed further. Aminur Rahman and another vs. Jalaluddin Ahmed and others (Mohammad Fazlul Karim J)(Civil) 4ADC 572

Section 25

The suit was field seeking ejectment of the monthly tenant i.e. the petitioner herein and for recovery of rent due till disposal of the suit. Md. Tobarok Hossain vs. Md. Fazlul Hoque (Md. Ruhul Amin CJ) (Civil) 5ADC 342

Section 25

Petitioner praying for ejectment of the defendant from the suit premises alleging, inter alia, that the Plaintiff's father, Md. Yakub Ali Sarder, was the owner of the suit premises and the defendant was inducted as a monthly tenant therein and the said Md. Yakub Ali Sarder transferred the suit land by a registered deed of heba-bil-ewaj dated 06.09.1988 in favour of the plaintiff and his brothers . Md. Nasiruddin vs. Md. Mizanur Rahman (Mohammad Fazlul Karim J) (Civil) 5ADC 789

Citation: 3ADC 591

Subject: Sylhet Non-Agricultural Urban Areas Tenancy

Delivery Date: 2018-11-29

Sylhet Non-Agricultural Urban Areas Tenancy Act of 1947

That from the evidence of D.W.4 that by Mahabir Durga Proshad was in possession that on or before 25.9.1956 which statement is totally infractuous with this claim. He purchased from Lai Brothers on 25.9.1956 and not from Mahabir Durga Proshad. This statement clearly provided that he did not got possession from Lai Brothers on 25.9.1996 and in the written statement Ext. 12 also he admitted that he did not got possession till 23.9.1957 which conclusively proved that the defendant no. 2 did not possession of the suit land at any point of time and the defendant no.l was inducted in possession by Durga Proshad as claimed by the plaintiff and not by the defendant no. 2. Aplatun Nessa Khatun and others vs. Ramprashed Tribedi (Mohammad Fazlul Karim J) (Civil) 4ADC 481 and editor of the daily Ittefaq after he was appointed a Minister in the cabinet of General H. M. Ershad and also during the coalition Government of the Awami League Anwar Hossain vs Mainul Hossain (M. M. Ruhul Amin J) (Civil) 3ADC 591

Citation: 2 ADC 346, 2 ADC 411, 2 ADC 553, 2 ADC 684

Subject: Abandoned building

Delivery Date: 2018-11-18

The Abandoned building (Suppleumentary provisions) ordinance (LIV of 1985 Section 10(5)

When his possession in the case property has been proved on the basis of the deeds of agreement, the last one being executed in February, 1970, there is no scope of enlisting the case property in the "Ka" list as abandoned property. Bangadesh. vs The Chairman, 1st Court of Settlement, (Md. Hamidul Haque J) (Civil) 2 ADC 346

Section 5(1)

For enlistment of a property in "ka" list the Government must satisfy the court that the possession of the property was taken over by it and for enlistment in "kha" list the government must establish that it gave notice upon the person in possession of the property to surrender possession before it's enlistment in "kha" list. In these cases neither possession of the property was taken before publication of Gazette Notification wherein the property was enlisted under "ka' schedule nor any prior notice for surrender of possession was served upon the person in possession of the building. In view of these factual positions the Government had no authority to publish the Gazette Notification enlisting the property in question in "ka" schedule and accordingly the learned Judges of the High Court Division rightly declared that the property in question could not be declared as an abandoned property nor can it be enlisted in 'kha' list of the list of abandoned property as published in the impugned Gazette Notification. Bangladesh vs Md. Shajahan & Showkat Jong Hsami (A. M. Mahmudur Rahman J)(Civil) 2 ADC 411

The essence of the matter is that the owner must receive back possession of the property actually and effectively from those who took it over as abandoned properties. The actual and effective restoration or transfer may take place either by physical delivery of possession or by other appropriate means. Bangladesh vs Gvt. (Mustafa Kamal C J) (Civil) 2 ADC 553

Section 5, 7

The onus, therefore, is squarely on the claimant of the building to prove that the building is not an abandoned property. The Government has no obligation either to deny the facts alleged by the claimant or to disclose the basis of treating the property as abandoned property merely because the same is disputed by the claimant. Bangladesh vs Md. Jalil (A.T. M. Afzal C J) (Civil) 2 ADC 684

Citation: 5 ADC 483, 2 ADC 907

Subject: Application under order 39

Delivery Date: 2018-11-18

The Application under order 39 rules 1,2,5(A)3, Section 151

Revisional application by staying opera-
tion of the order.......... (1)

That he is a sub-lessee under the company, the authorized leaseholder, and that the period of the lease of the defendant No.l being upto 31^st December, 2007, will expire shortly, directed the learned District Judge, to hear and dispose of the appeal on priority basis taking all the material points into consideration and till disposal of the appeal stayed the operation of the above order dated

26.11.2006......... (5) Hefazatur Rahman

Tipu vs. Forkanul Islam and others (Md. Tafazzul Islam J) (Civil) 5 ADC 483

Appellate Court can modify past decree

High Court Division committed no error in placing the plot Nos. 209/3, 214 and 215 in the residuary saham list as because the appellante Court passed decree modifying the trial Court's decree to the extent that the plot Nos. 209/3, 214 and 215 are left out of partition and that these plots were not expunged from the schedule of the plaint. Abdul Jabbar & others vs Surjaban Bibi & others (Mohammad Fazlul Karim J) (Civil) 2 ADC 907

Citation: 1ADC 13, I ADC 28, 3ADC 177, 4ADC 617, 3ADC 760

Subject: Arms

Delivery Date: 2018-12-02

The Arms Act (XI of 1878) Section 26

On a scrutiny of section 26 of the Arms Act we find that the Government is empowered to seize any arms, ammunition or military stores in the possession of any person, notwithstanding that such person is licensed to possess the same and the Government may detain the same for such time as it thinks necessary for the public safety. GolamAmbia vs The Deputy Commissioner Mymensing (K. M. Hasan C J)(Criminal) 1ADC 13

Section 19(a) and (f)

The arms and ammunitions were recovered from the possession of the arrested accused persons and they disclosed the names of their other companions who are the appellants. In such view of the matter, the appellants can not be held to be in possession of any arms. Pannu Mollh vs The State (Syed .J. R. MudassirHusain, J) (Criminal) I ADC 28

Section 19(A)

The learned Counsel next argued that in view of the proper discussion and assessment of the evidence on record it is found that confessional statement of the respondent under section 164 of the code of Criminal Procedure was corroborated by independent witness and also by documentary evidence and further by circumstantial evidence and as such the conviction and sentence as passed by the Special Tribunal is valid in law, but the learned Appellate Court illegally set aside the judgment of the Tribunal causing failure of justice. The State vs Nurul Islam (Syed J. R. Mudassir Husain J)(Criminal) 3ADC 177

Section 19(a) and (f)

Convicting the appellant and another under section 19 (a) and (f) of the Arms Act and sentencing them separately thereunder to suffer imprisonment for life. Tafazzal Hossain @ Shajahan vs. The State (Md. Ruhul Amin J) (Criminal) 4ADC 617

Appeals by leave to consider the question of sentence only.

Compassionate view has been taken in this case because the money which was allegedly misappropriated had already been returned. The accused appellants have in the meantime suffered part of their sentence and are at present on bail by order of this court. In the circum-

stances of the case it will not be unreasonable to show a little more compassion and exonerate the accused from suffering the remaining part of their sentence. Sekander Ali Howlader -vs- The state (Mohammad Abdur Rouf J) (Criminal) 3ADC 760

Citation: 2 ADC 281

Subject: Bangladesh Agricultural Development Corporation

Delivery Date: 2018-11-18

The Bangladesh Agricultural Development Corporation Ordinance 1961, Section 9, 52.

It is true that there is no right of promotion but it is also true that an employee has a right to be considered for promotion, which is a condition of his service. Article 133 of the constitution gives the authority power to regulate the appointment and service conditions of persons in the service of the republic. But it does not give power to prohibit promotion beyond the provision of law. The term "regulate" is not complementary to the term "prohibition". Therefore, none of the provisions of BADC Service Regulations, 1990 is to be read to impose prohibition on the promotion of respondent to the post of the Superintending Engineer as a right has already accrued to him under BADC Service Regulations, 1968. Motiur Rahman Chairman, (BADC), Dhaka vs Chowdhury Md. Mahfuzul Islam (K.M. Hasan J)(Civil) 2 ADC 281

Citation: 3ADC 931, I ADC 324

Subject: Bangladesh Madrasha Education

Delivery Date: 2018-11-28

Regulation 20,14 of the Bangladesh

Madrasha Education Board (Governing Bodies and Managing Committees) Regulation 1979,1997

The petitioner described himself incorrectly and unauthorisedly as superintendent of the Madrasha without assigning any reason for such finding in view of the facts that the petitioner was appointed as a superintendent of the Madrasha by a duly constituted ad-hoc committee and subsequently he was appointed as principal of the Madrasha by the Managing Committee and that until and unless such appointment is cancelled by competent authority the petitioner's locus standi connot be questioned. Moreover he was duly authorised by the Upazila Nirbahi officer by memo dated 19.05.2002 and so he filed the writ petition legally. Moulana Noor Mohammad -vs-Bangladesh Madrasha Education Board, 2, Orphanaz Road, Bakshi Bazar, Dhaka and others (Amirid Kabir Chowdhury J) (Civil) 3ADC 931

Regulation 43 (8) of the Regulations.

Day on which show cause charge sheet was communicated to a delinquent employee of an organization, herein the appellant, the said date is to be excluded since the same is in consonant with the rules of computation of period either for the purpose of limitation of legal proceeding or enquiry before the Tribunal or for the departmental enquiry. Md. Ashequr Rhanian vs B.A.R.l.R.M. Chairman (Md Ruhul Amin, J)(Civil) I ADC 324

Citation: 2ADC 643

Subject: Cinematograph

Delivery Date: 2018-11-19

The Cinematograph Act (II of 1918) Section 5(3)

That the discretion of the Deputy commissioner under section 5(3) of the Cinematograph Act, 1918 to grant licence being an exercise of power by statutory authority under a law such discretion cannot be exercised arbitrarily and must be exercised fairly and reasonable on relevant considerations and in the present case the Deputy Commissioner having not considered that the petitioner was exhibiting films in the Cinema Hall under licence since 22.4 1988 and has not violated any condition of licence and has been continuing in lawful possession of the cinema Hall under an agreement for sale dated 19.2.1997 with respondent No.2 and has a right to protect his possession under section 53A of the Transfer of property Act, the Deputy Commissioner acted arbitrarily in refusing licence to him and the High Court Division committed an error of law in refusing to interfere with the impugned order of the Deputy Commissioner. Md. Nurul Islam Sarker vs The Deputy Commissioner, Gazipur (Md. Ruhul Amin J) (Civil) 2ADC 643

Citation: 3ADC 928

Subject: Co-operative Societies

Delivery Date: 2018-11-20

The Co-operative Societies Ain, 2001, Rule 19(1)

Praying for fresh election after setting aside the election result. Th'^ petitioner (Respondent No.4 hereirj\ of the Dispute Case did not pray for declaring him Chairman of Khetlal UCCA Ltd. rather he prayed for fresh election. The Joint Registrar illegally declared him

Chairman though on such prayer was made in the Dispute Case. Md. Nabiul Islam Chowdhury-vs-Joint Registrar, Divisional Co-operative Office, Rajshahi and others (Syed J.R. Mudassir Husain CJ)(Civil) 3ADC 928

Citation: 3ADC 928

Subject: Co-operative Society

Delivery Date: 2018-11-20

The Co-operative Society Rules, 1987, Section 17(2)(b)

Praying for fresh election after setting the election result. The petitioner (Respondent No.4 herein) of the Dispute Case did not pray for declaring him Chairman of Khetlal UCCA Ltd. rather he prayed for fresh election. The Joint Registrar illegally declared him Chairman though on such prayer was made in the Dispute Case. Md. Nabiul Islam Chowdhury-vs-Joint Registrar, Divisional Co-operative Office, Rajshahi and others (Syed J.R. Mudassir Husain CJ)(Civil) 3ADC 928

Citation: 3AD 684, 3ADC 702, 4ADC 292, 5ADC 483, 4ADC 764, 3ADC 972

Subject: Civil Procedure

Delivery Date: 2018-11-26

Order VII Rule 11 of the Code of Civil Procedure.

The actions of the Government are made in the name of the President and notwithstanding the provision authorising the Government to make appointment of the learned Judges of the Adalat and constitute the said Court, the Government have taken the decision under order of the President and there is nothing wrong in the impugned legislation and that the Artha Rin Adalat has been legally constituted and the suit has been legally proceeded with. A.R.A. Jute mills Limited -vs- Janata Bank and others (Md. Ruhul Amin J)(Civil) 3AD 684

Order IX, Rule 13 of the code of Civil procedure (CPC)

The suit was filed seeking declaration of title in respect of 4.69 acres of land and confirmation of possession as to part of the land in suit and recovery of possession as to part of the property in suit and for permanent injunction.Mazw Bibi vs Mosammat Rabeya Begum (MD. Ruhul Amin J)(Civil) 3ADC 702

Order 41 Rule 31 of the CPC

Against the plaintiff is illegal, collusive and without any basis and jurisdiction and the plaintiff is not liable for the stolen trees on the averments that he auction purchased the forest trees of certain area.

Any allegation that the plaintiff himself committed the theft or in what way or manner the plaintiff is connected with the alleged theft and moreover the appellate court has not reverted the find-ing of the trial court as required under Order 41 Rule 31 of the CPC. The High Court Division further held that because of non reading and misreading of the evidence on record the judgment of the
appellate court suffers from illegality and the learned Assistant Attorney General also failed to convince the Court that the fine can be legally imposed upon the plaintiff in terms of the agreement of lease. It also appears the appellate Court failed to appreciate that the even though the stolen trees were recovered from the possession of Ahmedullah, the purchaser of Lot No.10. no case was filed against
Ahmeduullah and further no cases were also filed against the purchasers of the contiguous plots. The Divisional Forest Officer Cox's Bazar vs. Abdur Rahim Chowdhury and others (Md. Tafazzul Islam J) (Civil) 4ADC 292.

Order 6 Rule 17 of CPC

On consideration of the evidence on record, dismissed the suit and the High Court Division, without arriving at the finding that for complete adjudication of the dispute further evidence is necessary passed the impugned order which has the effect of permitting the plaintiff of fill up the lacuna in all aspect and the High Court Division also did not at all consider that the relief claimed by way of amendment is barred by limitation and is also beyond the ambit of Order 6 Rule 17 CPC. Government of the People's Republic of Bangladesh vs. Md. Abdur Rob and others (Md. Tafazzul Islam J)(Civil) 4ADC 412

Order 9 Rule 13 of the C.P.C.

Question of abatement may be decided in a forum having civil jurisdiction and accordingly the writ petition is not maintainable. Faroque Ahmed vs. Subordinate Judge, 2nd Court and Artha Rin Adalat No.l(Md. Tafazzul Islam J)(Civil) 4ADC 570

Order dated 16.01.2000 on the ground that according to the direction

Prayed for permanent injunction
restraining the defendants from leasing
out the suit land to anybody and also
from disturbing plaintiffs' possession in
the suit land....... (2)

Since admittedly the suit land is khas land of the government and the same was leased is khas land of the government and the same was leased out to the plaintiffs on yearly basis, that suit itself for a decree for permanent injunction against the Government was not maintainable ....(11) Government of Bangladesh represented by the Deputy Commissioner, Patuakhali vs. Md. Nurul Haque & others (MM. Ruhul Amin J) (Civil) 3ADC 972

Order 26, Rule 10 of the Civil Procedure Code

Praying for decree for a sum of Tk. 25,80,14,191.00 against the defendant appellants towards compensation on the averments that they obtained loan from Bangladesh Shilpa Bank to set up an industry for manufacturing electric bulbs . Janata Bank and others vs. National Electric Company Ltd. (Md. Tafazzul Islam J) (Civil) 4ADC 764

Order 39 rules 1,2 5 (A) 3 Section 151 CPC

Revisional application by staying opera-
tion of the order.......... (1)

That he is a sub-lessee under the company, the authorized leaseholder, and that the period of the lease of the defendant No.l being upto 31^st December, 2007, will expire shortly, directed the learned District Judge, to hear and dispose of the appeal on priority basis taking all the material points into consideration and till disposal of the appeal stayed the operation of the above order dated

26.11.2006......... (5) Hefazatur Rahman

Tipu vs. Forkanul Islam and others (Md. Tafazzul Islam J) (Civil) 5ADC 483

Citation: 4 ADC 777, 4 ADC 779, 4 ADC 782, 4 ADC 785, 4 ADC 844, 4 ADC 866, 4 ADC 882, 4 ADC 906, 4 ADC 934, 4 ADC 991, 4 ADC 1001, 5ADC 12, 5ADC 21, 5ADC 29, 5ADC 36, 5ADC 40, 5 ADC 115, 5ADC 131, 5ADC 138, 5ADC 147, 5ADC 202, 5ADC 220, 5ADC 224 , 5ADC 228

Subject: Civil Procedure

Delivery Date: 2018-11-20

The Code of Civil Procedure, Order IX Rule XIII

The trial court and the appellate court concurrently found that the petitioners had failed to prove that summons of the original suit was not served upon them and accordingly dismissed the case. Most. Jubeda Khatun vs. Md. Khuda Box & others (M.M. Ruhul Amin J)(Civil) 4 ADC 777

The High Court Division having considered both oral and documentary evidence on record found that the lower Appellate Court being the final Court of fact came to correct decision to the effect that the plaintiff-respondents sue- ceeded in proving their right, title and possession in the suit land and are entitled to permanent injunction. Abul Kashem vs. Md. Abu Bakar Siddique Khan and others (Syed J. R. Mudassir Husain CJ) (Civil) 4 ADC 779

Rejecting the application for restoration of S.A. No. 302 of 1979 which was dismissed for default for non-compliance of the court's order dated 19.07.2001. Md. Ohed Ali Mondal & others vs. Minor Mojibur Rahman & others (M.M. Ruhul Amin J)(Civil) 4 ADC 782

It appears that the defendant-petitioners paid only Tk. 15,00,000/00 out of the claim of the plaintiff amounting to Tk. 18,25,000/-and ultimately failed to repay the balance amount with interest and as such we are of the view that the learned Judges of the High Court Division having meticulously considered the evidence. Mr. Abul Hossain and Brothers vs. Rupali Bank Limited (Syed J. R. Mudassir Husain CJ)(Civil) 4 ADC 785

Section 151 (1)

The suit for declaration of title to the suit land by purchase or adverse possession and further that the order dated 6.2.1989 of the Additional Deputy Commissioner, Comilla declaring the suit land as enemy property is illegal and inoperative. Sree Santipada Datta being dead his heirs vs. Satish Chandra Das and others (Mohammad Fazlul Karim J) (Civil) 4 ADC 844

Order 6, Rule 17

Declaration of title to the suit land on the averments Since the plaintiffs are found in possession of the suit land there is no bar to allow the prayer for declaration regarding joint possession of the plaintiff with defendants No.7-10 along with declaration of their title; if the prayer of the plaintiffs for amendment of the plaint is not allowed they will be deprived of their legitimate right of enjoyment of their valuable properties; it is settled principle of law that amendment of the pleading can be allowed at any stage of the proceeding provided that the amendment, if allowed, would not change the nature and character of the suit and that amendment is necessary to effectively decide the real controversies between the parties in the suit. Hemayet Ali Shaikh and others vs. Ramesh Chandra Mondal (Md. Tafazzul Islam J) (Civil) 4 ADC 866

Section 115(2), 115(4), Order 5, Rule 20

Partition of their ancestral property. Hazi Salahuddin and others vs. Zinnatan Nesa and others (Syed J.R. Mudassir Husain CJ)(Civil) 4 ADC 882

Order 11, VII, Rule 10, 2

The Artha Rin Adalat Act, 1990 to be a special procedural law rather than a substantive law affecting the rights of the parties. It was submitted that where parties have agreed that a foreign law governs a dispute, capacity to sue is governed either by the law of the domicile of the plaintiff, which in this case is Washington D.C., U.S.A., or the governing law of the agreement, which in this is alleged to be English law, and not the law of the forum where the suit is brought to resolve the dispute. Mustaque Alam Chowdhury vs. The Court of Joint District and 2nd Artha Rin Adalat (Mohammad Fazlul Karim J)(Civil) 4 ADC 906

Section 151, Order XXXIX, Rule 4

Allowing the prayer for temporary injunction upon rejecting the application filed under Order XXXIX, Rule 4 read with section 151 of the Code of Civil Procedure. The civil (title) suit was filed under section 73 of the Trade Marks Act, 1940 for restraining the defendant petitioners and others from selling and supplying the water pump PEDROL-LA' imported from China. Ali and Brothers and Marquis Pump Marketing vs. Pedrollo NKLtd.(Md. Ruhul Amin J) (Civil) 4 ADC 934

Order 47, Rule 1

Seeking decree for permanent injunction and for declaration that the property in suit is not enemy property i.e. vested property.

Provision of the law relating to review that an application for review is enter-tainable from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by a party at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. MatiarRahman being dead his heirs vs. Assistant Custodian of Enemy Property Lands (Md. Ruhul Amin CJ)(civil) 4 ADC 991

For a declaration that the decision of the authorities in renewing his lease in respect of only half of the suit land was void, inoperative and not binding on him and he was entitled to the renewal of the lease in respect of the entire suit land alleging, inter alia, that the suit land originally belonged to Tokani Chowdhury and others. Md. Serajul Islam vs. Shaikh HayetAli and others (Md. Joynul Abedin J)(Civil)4 ADC 1001

Section XXVI, Rule 1

Principles of law as to the scope of judicial review of a detention order and evaluation of the grounds of detention have been grossly violated causing error in the decision on merit and whether a restatement of the said principles has

become necessary........... (3)

It seems to us that it has become more an academic exercise. The order of detention of the respondent was issued on 11.12.1990 and by the ultimate order of this court it has been declared to have been passed without lawful authority as far back as on 01.03.1998.The submission made on behalf of the respondent that the present exercise in the matter has become mere academic. Bangladesh represented vs. Mr. Mostafizur Rahman (Amirul Kabir Chowdhury J) (Civil) 5ADC 12

File the suit seeking the relief that
alleged deed of gift is false, fraudulent
and fabricated............ (2)

That the settled principle of law is that the concurrent findings of fact arriving at by the courts below, however erroneous, they may be,is binding upon the High court Division in its revisional jurisdiction and as such the judgment of the High Court Division sought to be appealed is not sustainable in law, that the courts below on appreciation of the evidence on record held that the story of permissive possession has not been proved by the defendants rather it was found by the courts below that the plaintiff is in possession of the suit land on the strength of registered deed of purchase dated February 25,1947 and this being a finding of fact is binding upon the High Court Division. Shushil Chandra Nath vs. Shanjib Kanti Nath(Md. Ruhul Amin J) (Civil) 5ADC 21

Writ petitions by way of certorari on... (2)

Whether the writ- petitioners were appointed in Phase-I of the Project purely on temporary and contract basis upto the completion of the Phase-I or the writ-respondents i.e. the Government was under any legal obligation to absorb them in the phase-II of the Project, (b) whether the Government was free to amend the Project pro-forma enabling it to implement Phase-II of the Project by taking steps for direct appointment of personnel through open competition by inviting applications in the news papers affording opportunity to the writ-petitioners as well as others,(c) whether the impugned order causing publications of notification in the news papers inviting applications for appointment in various posts in Phase-II of the Project were illegal, (d) whether the Government in the Ministry of Agriculture was under any legal obligation to transfer the Project personnel including the writ petitioners to the revenue budget after completion of the Project. Government of Bangladesh vs. Jahangir Alam (Md. Joynul Abedin j) (Civil) 5ADC 29

The suit was field seeking a decree for permanent injunction in respect of the land described...(l) Only because the defendant has produced certain documents and claimed title to the suit land can not disentitle the plaintiffs to a decree for permanent injunction if the plaintiffs are successful in proving prima facie title and exclusive possession, if the exclusive possession of the plaintiffs is established, suit for granting a decree for permanent injunction shall lie and a party not in possession may resort to the remedy available to him by law but that should not be a ground for dismissing a suit for permanent injunction. Atiqullah alias Atik vs. Mohammad Safiquddin (Md. Ruhul Amin J')(civil) 5ADC 36

Praying for permanent injunction contending, inter alia, that they are owners in possession of the suit land by way of inheritance as well as by purchase. .. .(2) Chairman, Raisree(North) Union Parishad vs. Abdul Khaleque (Md. Tafazzul Islam J) (Civil) 5ADC 40

Order 7 Rule 3

For decree of declaration of their right and title in the Kha schedule property against the defendants stating that the schedule 'Ka' land of the plaint was owned by late Majnani Bewa. The suit lot-I property was under her Khas possession, while the 1 st-2 property was enjoyed by her by granting Korfa Pattan and the land was recorded in C.S.

Khatian in her name accordingly.... (2)

Md. Rafiq Uddin vs. Md. khorshed Ali Mollah (Mohammad Fazhd Karim J) (Civil) 5 ADC 115

Section 151 (1)

the scope of Section 115(1) of the Code of Civil Procedure is now well settled. Considered pronouncements by the highest Court of the Country have made it abundantly clear that a Court of revision under Section 115( 1) of the Code of Civil Procedure can interfere with the findings of fact of the final Court of fact only in exceptional circumstances when the findings are shockingly perverse or these are vitiated by non reading and misreading of the material evidence or misconception of any important document affecting the merit' of the case. The learned Advocate of the petitioner has not been able to point out any such legal infirmity in the impugned judgment which calls for any interference by this Court. Simply because the impugned judgment is not a speaking order of an elaborate one, could not by itself be a valid ground for interference by this revisional Court unless it can be shown that the Court below has committed an error of law in the decision occasioning failure of justice. Rahmat Ali being dead his following substituted heirs vs. Md. Abdul Gani (Mohammad Fazlul Karim J) Civil 5ADC 131

Section 151

This Court while dismissing the appeals held that the Arbitrator is a creature of the statute (Ordinance II of 1982) and under section 36 of the Ordinance he has been vested with some limited powers of Civil Court. Therefore, the Aribitator has no power of review. It was further held that in view of provision for appeal under section 34 of the Ordinance and the appellants having preferred review application without filing appeal before the Arbitrator, the same was not maintainable ....(2) Atik Ullah vs. Government of the People's Republic of Bangladesh (M.M. Ruhul Amin J) (Civil) 5ADC 138

Order 21, Rule 99

The executing court noticed that the prayer for stay was earlier rejected and same was challenged but without success and finally Civil petition No. 331 of 2002 was filed before the Appellate Division which dismissed the same. The executing court also noticed that the petitioner has been trying to delay the disposal of the said Execution Case. Accordingly the executing court by order dated 24.6.2002 rejected the prayer for stay of further proceedings of other Execution Case No.4 of 1998 till disposal of Miscellaneous Case No. 29 of 2002. The petitioner then filed the said Civil Revision No. 3262 of 2002 against the said order dated 24.6.2002 and the rule issued therein was eventually "discharged by the impugned judgment and order dated 3.5.2002. Shams id Arefin Rao vs. Mahbub Hossain (Md. Joynul Abedin J) Civil 5ADC 147

Section 11

Trade Mark Appeal..... (1)

The petitioner Sunil Kumar Das being the sole proprietor of the Bangladesh Manufacture and Merchant made an application on 31.07.1997 to the Registrar of Trade Mark, Dhaka for registration of Mark "CANNON" in class 25 for Hosiery Product Sunil Kumar Das vs. Deputy Registrar of Trade Marks (Md. Abdul Matin J) (Civil) 5ADC 202

Section 56

The respondent No.2 put the decree into
execution by filing Money Execution
Case No.2 of 1991 and at one stage filed
an application with the prayer for mak-
ing an order for civil imprisonment of
the defendant judgment-debtors includ-
ing the appellant...... (2) Hazera Begum

vs. Artha Rin Adalat and others (Md. Joynul Abedin J) (Civil) 5ADC 220

Seeking declaration that the property was not an abandoned property but the plaint of the suit was rejected Nazma Ahmed and others vs. Bangladesh represented by the Secretary (Amirul Kabir Chowdhury J) (Civil) 5ADC 224

Delay is condoned.......... (1)

The suit was filed seeking redumption of the cot mortgage which was made by the kabala Harich Ahmed vs. Wali Ullah and others (Md. Ruhul Amin J) (Civil) 5ADC 228

For recovery of khas possession in

respect of lands...... (2)

Md. Fazlur Rahman vs. Haji Md. Manir Khan (Mohammad Fazlul Karim J) (Civil) 5ADC 231

For permanent injunction....... (2)

Wali Miah Sodagor Jame Masjid vs. Abdul Hoque (Mohammad Fazlul Karim J) (Civil) 5ADC 234

For a declaration that the registered deed dated 24 03.1988 being No. 2969 of 1988 is forged, collusive, inoperative and not binding upon the plaintiffs . Md. Abdul Muttalib vs. Md. Abdul Wahab (M. M. Ruhul Amin J) (Civil) 5ADC 237

Section 17, 39 Rule 3(2), 4

An application for temporary injunction for restraining the defendant-respondent and others from inter-fering with peaceful possession of the plaintiff petitioner in the suit property. Alhaj Mostafijur Rahman vs. Rezaul Hoque (Md. Joynul Abedin J) (Civil) 5ADC 255

Section 115 (1)

Suit for declaration of their easement right over the land described in the second schedule of the plaintiff and also for permanent injunction restraining the defendant Nos. 1 -4 from interfering with right of the plaintiffs as well as the Co-villagers to use the said land as pathway stating ,inter alia, that the plaintiffs as well as the people of villages Gualan,Kadimpura. Government of Bangladesh vs. Abdul Aziz and others (Md.Tafazzul Islam J) (Civil) 5ADC 301

Order 6, Rule 17

For declaration of title and Khas possession by evicting the defendants on removing Obstructions Md.Shafiqul Islam Chowdhury vs. Mustafizur Rahman (Md.joynul Abedin J) (Civil) 5ADC 329

For declaration of title and confirmation

of possession to.......... (2)

Md. Abdul Bari vs. Md. Abdul Aziz(M. M. Ruhul Amin J) (Civil) 5ADC 332

Section 151, Order 9, Rule 13

Challenging the order of RAJUK dated 24.08.1998 canceling the lease of Plot Nos.20 and 20-A in Gulshan North Commercial Area, Dhaka earlier granted in favour of their predecessor late Md. Chowdhury. After the death of their predecessor,the plaintiffs-respondents as his legal heirs instituted the above suit. ...(2) The Chairman, RAJUK vs. Momtaz Hasan Chowdhury (M.M.Ruhul Amin J) (Civil) 5ADC 335

For declaration of title,confirmation of possession and also for permanent injunction in respect of the suit land on the averments that the suit land originally belonged to Monsur Ali ,the father of plaintiffs No.l and the grandfather s of the plaintiffs Nos. 2 to 5 ,who was raiy-at under khiroda chandra roy;the

Superior landlord............. (2) Mohammad

Rashid vs. The Head Master and Secretary Moheshkhali High school (Md. Tafazzul Islam J) (Civil) 5ADC337

Section 115 (4), Order 7, Rule 11

Declaration of title, recovery of Khas possession of the suit land, permanent injunction and for some other relief on the averment that a piece of land. M/S Haque's bay vs. Mrs. Jahanara Ahmed ((Md. Joynal Abedin J) (Civil) 5ADC 409

Section 115 (1)

The Court below found on evidence that the predecessor of the plaintiffs obtained pattan from the Zaminder Majumder Waqf Estate,on the basis of which record of right has been prepared in their name though the defendant filed Title Suit No.3 of 1991 claiming 50% title thereto on the basis of joint pattan but the suit was withdrawn .The Defendant failed to produce the pattan document and ultimately relied on adverse possession .The plaintiffs have proved the permissive possession of defendant .The defendant though alleged the possession since 1984 but the alleged licence was dated 1994 which have been interpolated by the defendant overwriting'1984.The plaintiffs has proved the defendant possession since 1994 and the suit was filed in 1998.Thus the plea of defendant Nos.I and 3 as to adverse possession falls the ground . The plaintiffs was paid rent in supported of record of rights in their names... (6) Abdul Khaleque vs. Shamsuddin and others (Mohammad Fazhd Karim J)(Civil) 5ADC 412

Section 151 Order 39, Rule 1

Prayer for temporary injunction by filing a written objection denying plaintiffs possession in the suit land. Government of the People's vs. Md. Abdus Salam (Md. Tafazzul Islam J)(Civil) 5ADC 424

Section 151 (1)

For declaration that the deed of sale dated 14.07.1937 by abdul Karim Hajra predecessor-in-interest of the plaintiffs and proforma-defendants purpoted to have been executed in favour of the defendants No.l Abdul Khaleque and Abdul Haque , predecessor-in-interest of the defendants No.2 to 12 has not been acted upon , ineffected and that the vendees are the banamders for the vendor Abdul Karim Hajra and that no right,title and interest accrued to the vendees on the strength of the aforesaid deed of sale. Md. Ekabbar Hajra vs. Salamat Hajra (Amirul Kabir Chowdhury J) (Civil) 5ADC 430

Order 6, 41, Rule 17, 27

Decreeing the suit declaring the suit property to have been purchased in the benami of the defendant A.H. Md. Ali Haider Quoraishi vs. Shaheen Quoraishi and others (Syed J.R. Mudassir Husain CJ) (Civil) 5ADC 451

A 'salish' was held and as per award of the 'salish' plaintiff got her name mutated in the S.A. record and thereupon paying rent, that as the S.A. record was prepared wrongly in the name of Kamaruddin, as such to avoid future complications the plaintiff is constrained to file the suit. Md. Baker Mia and others vs Shamsun Nahar Begum (Md. RuhulAmin J) (Civil) 5ADC 472

Section 115 (1)

Praying for declaration that the order of his dismissal passed by the defendant-respondents from the service of the respondent's bank is illegal stating, interalia, that the plaintiff joined the service of International Finance Investment and Commerce (IFIC) Bank Ltd., (to short, the bank) on 27.01.1984 as officer grade II and that he served the bank with sincerity and honesty and on 01.07.1994 was promoted as Assistant Vice President of the Bank and that on 08.06.1997, a pay order was issued from the branch of which he was the manager and that the pay order was signed by the plaintiff and another and that the pay order was for Tk. 1,00,000/- but in fact it ought to have been made for Tk.100/-and that the mistake was inadvertent and was detected later and subsequently the beneficiary of the pay order deposited the entire amount of Tk.1,00,000/- and thus the bank was saved from financial loss but the bank initiated disciplinary proceeding against him and an inquiry committee was constituted who held an inquiry and gave a report and thereafter charge sheets were served upon the plaintiff who submitted replies thereto and the inquiry committee found him guilty and submitted report accordingly on the basis of which the order of removal dated 05.07.1999 was issued.

...... (2) S. M. Iqbal Hossain vs.

Managing Director, International Finance Investment (Amirul Kabir Chowdhury J) (Civil) 5ADC 485 Section 115(1), Order9, Rule 13

That during pendency of the said Miscellaneous Case the plaintiff constructed illegally a house in the suit land and that there is no merit in the suit of the plaintiff and as such it is liable to be dismissed. Abdul Khaleque Pramanik vs. Rajab AH Pramanik (Amirul Kabir Chowdhury J) (Civil) 5ADC 515

For cancellation of oral gift in respect of the first floor of the building situated on the suit property together with the recovery of khas possession thereof by

evicting the defendant therefore...... (2)

Md. Badiuzzaman vs. Parvin Akhter Jahan (M.M. Ruhul Amin J) (Civil)5ADC 519

Section 151, 151 (1)

That the declaration of the property as enemy property is illegal, void and not binding upon them and that the suit property belonged to Balai Sardar and others ....(2) Murari Mohan Sarder vs. The Government of the People's (Amirul Kabir Chowdhury J) (Civil) 5ADC 522

Order 1, Rule 1

For declaration of his title to the suit land claiming the same by way of inheritance from his father and by amicable arrangement with other heirs of his father Md. Hashmat Ullah Tapadar vs. Md. Baset Khan (Mohammad Fazlul

Karim J) (Civil) 5ADC 565

Order 39, Rule 1 and 2

Allowing an application for injunction restraining the opposite party No.2 from making construction of any house in the land in suit and not to change the nature and character of the property in suit. Abdur Rahman vs. Jan Bibi and others (Md. Ruhul Amin J) (Civil) 5ADC 576

Order 41, Rule 21

Finally the High Court Division observed that the petitioner in the Civil Rule No.80(5) of 1998 was a lessee of the property in suit from year to year and that no material was placed on record that he still is a lessee, nor any statement has been made to the effect that lease is subsisting. In the background of the said fact the High Court Divisioif held that the petitioner has no locus standi to file the application seeking re-hearing of the Second Appeal. The High Court Division also noticed that defendant No.8 did not appear in the Second Appeal nor he has challenged the judgment and decree passed in the Second Appeal. In the afore state of the matter the High Court Division discharged the Rule. Noor Mohammad Biswas vs. Surendra Nath Mondal (Md. Ruhul Amin J) (Civil)5ADC 578

Order 9, Rule 13

For setting aside the ex-parte decree on the ground that the summonses of original suit was not duly served upon the defendants and the names and addresses of the defendants were wrong and the summonses were shown served in collu-
sion with the process server................. (2)

Enayet Hossain vs. Nur Islam Howlader (M.M. Ruhul Amin J) (Civil)5ADC 580

Specific performance of contract on the averments that the suit property belonged to the defendant petitioners and the respondent No.3 (the proforma defendant No.5) and they agreed to sell the same to the respondent No. 1 at a consideration of Tk. 3,00,000/- and he having paid Tk. 1,50,000/- a bainanama was executed whereupon the possession of the suit property was delivered to him and the Petitioners subsequently received further amount from him by executing 'wasil receipt' and the respondent No.l thus, in total, paid Tk. 2,66,500/- and then he tendering the balance amount requested the petitions and the respondent No.3 to execute and register the sale deed but only the respondent No.3 executed and registered a sale deed in respect of his portion of the suit property and the petitioners refused. Abdul Zakir Khondaker vs. Bimal Kumar Kunda (Md. Tafazzul Islam J) (Civil) 5ADC583

Order 1, Rule 10(2)

Rejecting application filed by the petitioners praying for adding them as parties ...(1) Kazi Naimul Huq vs. Md. Abdus Sattar Bhuiyan (Md. Tajazzul Islam J) (Civil) 5ADC 605

Section 115

The High Court Division in the exercise of its power under Section 115 of the Code of Civil Procedure, considered the materials on record, decreed the suit holding that the lower appellate Court had wrongly affirmed the trial Court's decree of dismissal of the suit over looking the broad facts that the defendants had failed to prove the title of Rajendra Nath Shil in the suit plot and as such the Courts below wrongly disbelieved the plaintiffs' possession therein and as such the learned Single Judge of the High Court Division upon assessment of oral evidence of the witnesses found both title and possession of the plaintiffs in the suit land and further held that the plaintiffs' suit being a suit for declaration of title to the suit land upon ascertaining possession the courts below wrongly held that the suit was barred by limitation. Shamsur Nessa vs. Md. Shajahan Ali (Syed J. R. Mudassir Husain J) (Civil) 5ADC 614

The plaintiff's contention is that the said deed of gift is forged, fabricated and fraudulent and has been created to grab the suit land. Meher Banu and others vs. Abdul Barek and Muslim Bepari (M.M. Ruhul Amin J) (Civil) 5ADC 618

The suit was filed seeking declaration that the orders described in schedule 'Ka' and 'Kha' and the proceedings initiated on the basis of the said orders are illegal, void, without jurisdiction and as such not binding upon the plaintiffs. Shamsuddin Chowdhury vs. Government of the People's (Md. Ruhul Amin J) (Civil) 5ADC 621

The suit was filed seeking declaration of title Sheikh Abdul Mazed vs. Md. Shomrej Ali Mandal (Md..Ruhul Amin J) (Civil)5ADC 680

Praying for Declaration of title by adverse possession to the suit land and for further declaration that the exparte judgment and decree dated 09.08.1990 passed in Title suit No. 167 of 1999 was illegal, inoperative and not binding

upon the plaintif.. (2) Shahin Reza and

others vs. Abdul Hamid (M.M Ruhul Amin J)(Civil) 5ADC 682

Section 11

Filed seeking declaration of title and confirmation of possession in respect of the 'Ka' schedule land. Alhaj Md. Ruhul Amin Sarker vs. Hargram Trust Board (Md. Ruhul Amin CJ) (Civil)5ADC 762

The suit was filed seeking specific performance of contract (September 23, 1974) for sale of land described in the

schedule attached to the plaint... (1)

Omar Farooque vs. S.M. Shahabuddin (Md. Ruhul Amin J) (Civil) 765. Section 144, order 9 Rule 13

An application for staying the operation of the said compromise decree was also

filed under the said suit... (2)

Md. Raja Miah vs. Md. Ijab Uddin (Md. Joynul Abedin J) (Civil) 5ADC 878

Citation: 3ADCJ51, 3ADC 154, 3ADC 163, 3ADC 186, 3ADC 326, 3ADC 427, 3ADC 476, 3ADC 545, 3ADC 677, 3ADC 734, 3ADC876, 3ADC 901, 3ADC 904, 3ADC 945, 3ADC 960, 3ADC 968, 3ADC 970, 3ADC 972, 2ADC 20, 2ADC 23, 2ADC 30, 2ADC 139

Subject: Civil Procedure

Delivery Date: 2018-11-19

The Code of Civil Procedure Order 41 Rule 33.

Respondent has submitted regarding the immunity of the respondent to be used in our Courts, for which the suit is not maintainable. The question of immunity is a mixed questions of law and fact and the material has to be produced by way of averments in the written statement and thereafter the materials are required to be considered in the light of the evidence in the suit and a decision should be arrived at accordingly. Ismet Zerin Khan vs The World Bank (Mohammad Fazhd Karim J)Civil 117

The Code of Civil Procedure (V of 1908) Section 100,103

High Court was incompetent to disturb the finding of fact arrived at by the final Court of fact on consideration of evidence on record inasmuch as such erred in law in disturbing the finding as to adverse possession arrived at on the basis of the evidence and that disturbing the finding of fact arrived at by the courts below. Hriday Ranjan Dey vs Niranjan Dey (Mohammad Fazhd Karim J)(Civil) 124

Section 115, Rule 13, Order IX

Whether in view of the decision of this Division that interest in a monthly tenancy is heritable and the fact that the exparte decree obtained in O.C. Suit No. 29 of 1972 has no direct bearing on landlord-tenancy relationship. Mahmuda Khatun vs 1. Abul Ycunus Talukder ors, (Muhammad Abdur Rouf J) (Civil) 3ADCJ51

Section 20

That cause of action for tying the suit by the appellant has arise beca se of the decree passed in Artha kin Adalat Case No. 55 of 1990 and the execution taken on the basis of the said decree ending in sale of the property of the appellant in auction and purchases thereof by the Respondent No. 3. Md. Habibur Rahman vs M/S. Uttara Bank Ltd (Md. RuhulAmin J)(Civil) 3ADC 154

Section 151

Whether after finally disposing a matter, a Court or Tribunal can re-open the matter when an allegation of fraud practiced on the Court or Tribunal is brought to its notice. Govt, of Bangladesh vs M.A. Khair Bhuiyan (Mohammad Fazlul Karim J')(Civil) 3ADC 163 Section 115(1)

That it was barred by limitation being filed beyond 4 years from the date of knowledge of the wrong entry in the S.A. khatian and that the plaintiffs could not prove their right, title, interest and possession in the suit land and that the contesting defendants also could not prove the title of their vendor Rajendra Shil in the said land. Shamsur Nessa vs Md.Shajahan Ali (Syed J.R. Mudassir Husain J)(Civil) 3ADC 186

Section 100

Findings of criminal court, cannot be considered by the Civil courts save and except the factum of conviction and sentence. Abdul Ma\inan vs Tayeb Ali ors. (Md. Ruhul Amin J)(Civil) 3ADC 326

Section 21 Rules 52, 56

Whether the appellant is nound. to ray the.decreetal amount to the respondent No. 1 cut of the Consolidated Fund without a separate instrument authorizing such payment. Bangladesh Bank vs Mrs. RanaAwan (Md. Tafazzul Islam J) 3ADC 427

Order7, Rule 11

Averments having been made in the plaint alleging fraud and malafide and that in the light thereof relief having been sought civil court is quite competent to investigate the question of fraud and malafide and the said allegation as can only finally adjudicate upon full dress hearing of he suit, the High Court Division was in error in rejecting the plaint upon an erroneous view that the suit is barred under section 37 of the PDR Act. Md. Marfat All Miah vs Sree Jagadish Chandra Sheet (Md. Ruhul Amin J)(Civil) 3ADC 476

Section 151

It is well-settled this section merely furnishes legislative recognition of an age old and well established principle that every court has inherent power to act ex debito justiae to do that real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the Court. Bangladesh vs. Messers Fabrica Nacional De Monedy Timbre (A.T.M. Afzal C J) (Civil) 3ADC 545

Section 115(1)

Seeking declaration as to legality of enrolment of the Waqf Estate and also challenging legality of inclusion of property in the 2nd schedule of the plaint as Waqf Property. Serjuddowla Sowdagor vs Administrator of Waqf & others (M.M. Ruhul Amin J)(Civil) 3ADC 677

Order 22 rule 9(2) (3)

The learned Judge of the High Court Division has failed to construe properly the application for setting aside the abatement which substantially met the requirements of Order 22, Rule 9 (2) (3) of the Code of Civil Procedure and was wrong in holding that but for a separate application for condonation of delay the prayer for setting aside abatement was to fail. Abdul Kader Mondal and ors -vs- Shamsur Rahman Chowdhury alias & Shamsur Rahman Saha(Latifur Rahman J) (Civil) 3ADC 734

Section 115 & 115(1), Order 39, Rules 1&2

Praying for declaration that the judgment and decree to Title Suit No.298 of 1980 was not binding upon the plaintiffs. Under order 39, Rule 1 read with section 151 of the Code of Civil Procedure Praying for temporary injunction against the defendant restraining them from entering into the suit land by force or from constructing boundary wall or cutting away trees from the suit land. Divisional Forest Officer, Dhaka Forest Division, Dhaka and others -vs- Zahid Maleque and another (Amirul Kabir Chowdhury J) (Civil) 3ADC876

Section 115(1) Order 39 Rules 1 and 2

Order of mandatory in junction is very sparingly allowed. It can be granted if any body is dispossessed in violation of the order of injunction but in the instant case there was no order of status quo as alleged by the plaintiffs and that the plaintiff respondents having been evicted by the law enforcing agency at the instance of Dhaka City Corporation, the lawful owner of the property, and that the plaintiff respondents having not been evicted in violation of courts order/ or any order of injunction or status quo, the High Court Division erred in affirming the order of mandatory injunction passed by the trial court. Fulbaria Adrasha Market Dokandar Malik Samity & anr -vs-Fulbaraia Adrasha Market Khatigrastha Dokandar Kallyan Samabay Samity Limited and others (Amirul Kabir Chowdhury J)(Civil) 3ADC 901

Section 144, 151 Order 21, 39, 9 Rule 1,2,35,13

It appears to us that inspite of the order of stay passed by the High Court Division, the executing court delivered possession in favour of the respondent Nos. 2-4 and as such the High Court Division passed the impugned judgment and order directing to restore possession to respondent No. 1. We do not find that the petitioner who is neither a plaintiff nor defendant thereby being not a decree holder not judgment debtor, could not legally resist the action and as such we find substance in the submissions of the learned counsel of the respondents. Md. Belayet Hossain -vs-Abul Fayez Md. Abdullah and others (Amirul Kabir Chowdhury J)(Civil) 3ADC 904

Section 115(1)

The Heba deed No. 15294 dated 10.11.1986 made in favour of Berafun Nessa contains description of land situated both in Gomostapur and Nawabgani and hence was legally registered at Nawabganj Sub-registry office and as such the High Court Division erred in holding that the registration of the deed No. 15294 dated 10.11.1986 is void because it was not registered at Gomostapur Sub-registry office. Md. Raisaddin Biswas & others vs. Md. Mazed Ali Being dead his heirs-Sayera Bewa, wife of late Mazed Ali & others (M.M. RuhulAmin J) (Civil) 3ADC 945

Order 7, Rule 3

The plaintiffs are out of possession of the land in suit and as such without the prayer for consequential relife the suit seeking simple declaration of title was not maintainable. In that state of the matter it is clear that the plaintiffs have sought for declaration of title in respect of unspecified, vague and undivided land. If the land in suit is vague, unspecified and that relief sought is in respect of undivided portion of land of particular plot(s) in that case suit seeking mere declaration of title is not maintainable. Ershad Ali Howlader died leaving behind the following heirs: Nazrul Islam (Babul) and others vs. Santi Rani Dhupi and others (Md. Ruhul Amin j) (Civil) 3ADC 960

Section 151, Order 26, 39 Rule 7,9

The learned counsel for the petitioners submits that the ascertainment of possession is a judicial act which has to be ascertained by the court upon evidence and an Advocate Commissioner is not competent to ascertain possession and the High Court Division suomoto and without assigning any reason made the rule absolute thereby allowed admission of additional evidence in a modified form though the appellate court, after assigning reason, rejected the application for local inspection being additional evidence in modified from and thus the High Court Division committed an error occasioning failure of justice in making the Rule absolute. A. K. M. Fazlul Hoque and others vs.Bazlur Rahman @ Md. Bazlur Rahman and others (Md. Tafazzul Islam J) (Civil) 3ADC 968

Defendant gave undertaking in Title Suit No. 121 of 1986 that he would not use the sale certificate in any proceeding of available in future as the order of the trial Court clearly shows that defendant No. 1 was debarred from using the sale certificate in Title Suit No. 121 of 1986 only. The High Court Division on consideration of the oral evidence as well as the documentary evidence held that the defendant is in possession of the land in suit. The High Court Division also on consideration of the documentary evidence held that the land in suit i.e. the land of kabala dated July 11, 1935 was auction sold and the same was purchased by defendant's mother in his name and that on the basis of the auction purchase defendant got his name mutated in the khatian and paying the rent regularly. The High Court Division has observed since prior to the auction sale the defendant was in possession so even if no formal delivery of possession after auction purchase was taken but for that title accrued by the defendant through the auction purchase will not be affected. Harich Ahmed being dead his heirs-1 (Ka) Abdul Khaleque and others vs. Wali Ullah and others (Md. Ruhul Amin J) (Civil) 3ADC 970

Section 151, 148

Prayed for permanent injunction restraining the defendants from leasing
out the suit land to anybody and also from disturbing plaintiffs' possession in
the suit land........ (2)

Since admittedly the suit land is khas land of the government and the same was leased is khas land of the government and the same was leased out to the plaintiffs on yearly basis, that suit itself for a decree for permanent injunction against the Government was not maintainable. Government of Bangladesh represented by the Deputy Commissioner, Patuakhali vs. Md. Nurul Haque & others (M.M. Ruhul Amin J) (Civil) 3ADC 972

Order XXXIX Rule 1

Before cancellation of license issuance of notice of show cause is necessary but only in respect of the Nikah Registrar who has been appointed under Rule 5(4) of the above Rules 1975 i.e. who has been made permanent and the respondent No.4 having not yet been made permanent Nikah Registrar of Goalerchar Union, the High Court Division erred in holding that cancellation of license of the respondent No. 1 is not legal for want of notice of show cause before cancellation. Mosharraf Hossain vs Montana Md. Tofazzal Hossain (Md. Tafazzul Islam J) (Civil) 2ADC 20

Section 115(1)

The learned Single Judge of the High Court Division erred in law in setting aside the judgment and decrees of the courts below based on concurrent findings of fact and thereby exceeded the revisional jurisdiction under section 115(1) of the Code of Civil Procedure which resulted in an error in the decision causing failure of justice and in such view of the matter the findings and decisions as arrived at by the High Court Division can not be sustained in law and the same are liable to be set aside. Aroti Rani Paul vs Sudarshan Kumar Paul (Syed J. R. Mudassir Husain J)(Civil) 2ADC 23

Order II Rule 17

The principle is that the natuie and character of a suit do not change so long as the fundamental character of the suit remains the same. A suit for declaration of title, recovery cf possesion and/or for partition is essentially based on a common claim of the plaintiff which may call for aforesaid different relief or reliefs in different situations. Abdul Mctaleb vs Md. Ershad Ali <A.T.M. Afzal J) (Civil) 2ADC 30

Section 115

The High Court Division hi,:- exceeded its jurisdiction in setting as 'ae the ccn-cviint finding of facts arrived at by the courts below after due consideration of the evidence on record. Sheikh Abdur Rashid vs Alhaj Akram Hossain (Md. Fazlul Hauqe J) (Civil)2ADC 139

Citation: 2ADC 143, 2ADC 146, 2ADC 149, 3ADC 702, 3ADC 707, 4ADC 339, 3ADC 888

Subject: Civil Procedure

Delivery Date: 2018-11-19

The Code of Civil Procedure, (V of 1908) Order 9 Rule 4, 13,41,27. 49

In the instant case before us we found that actually no notice was served upon the defendants after restoration of the suit on the basis of the order passed in Misc. cases filed under order 9, Rule 4 of the Code of Civil Procedure 1908. Khairun Begum vs Abdul Malik (Md. Hamidul Haque J)(Civil) 2ADC 143

The Code of Civil Procedure (V of 1908) Section 115(1). Order 7 Rule 11.

Mere statement in an application for rejection of the plaint is not enough, it requires investigations upon framing an issue as to whether the suit is barred by the Principle of res-judicate and the same has to be denied on evidence being adduced. Most Fatema Khatun vs Md. Golam Mostafa (Syed J. R. Mudassir Husain J)(Civil) 2ADC 146

Section 115

That the defendant has a right to file a written statement under Order VIII Rule 1. C. P. C as this procedural right is not inconsistent with the Adalat Act, but the defendant has no procedural right to claim a set off or counterclaim under Rule 6 in a suit under the Adalat Act in whatever form, as Rule 6 is inconsistent with the jurisdictional provisions of the Adalat Act. The High Court Division was right in its reasoning that what cannot be done directly cannot be done indirectly. Sultana Jute Mills Ltd. vs Agrani Bank (Mustafa Kamal J)(Civil) 2ADC 149

The Code of Civil Procedure (CPC), Order IX, Rule 13

The suit was filed seeking declaration of title in respect of 4.69 acres of land and confirmation of possession as to part of the land in suit and recovery of possession as to part of the property in suit and for permanent injunction.Mazu Bibi vs Mosammat Rabeya Begum (MD. Ruhul Amin J)(Civil) 3ADC 702

Code of Civil Procedure, Section 10

No Court should proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. Abdul Jabbar vs Sultan Ahmed (Amirul Kabir Chowdhury J)(Civil) 3ADC 707

Code of Civil Procedure, Section 11

Principle of resjudicata under section 11 of the Code is applicable in a writ proceeding as the same is also 1 civil proceeding. We are, therefore, of the view that claimed in writ Petition No. 4127 of 1992 filed by the writ petition-respondents against the appellants 3f both the appea's was barred by the principle of constructive resjudicata f^\r implied refusal cf their claim i%r respect of *he self same sale deed dated 9.11.1989 in

Writ Petition No. 798 of 1990. Morevoer after disposal of Writ Petition No. 480 of 1981 by judgment dated 14.1.1982 on the basis of assurance given in the supplementary affidavit sworn on 11.1.1982 respondents cannot claim that they are the owners of the lands and structures of Hardeo Glass, Alumunium, Enamel and silicate Works and the previous of the said factory and the appellants of the two appeals were and are ejectble monthly tenants under them. Hence the impugned judgment can not be sustained in law and is liable to be set aside.

In the result both the appeals are allowed without any order as to cost and impugned judgment of the High Court Division is set aside. Government of Bangladesh and ors. vs. Sree Sree Luxmi Janardhan Jew Thakur & ors (Kazi Ebadul Hoque J) (Civil) 4ADC 339

The Code of Civil Procedure Section 115(1)

Claiming pre-emption under Section 96 of the State Acquisition and Tenancy Act and Section 24 of the Non-agricultural Tenancy Act claiming to be contiguous owner of the case land. Abdul Quddus-vs-Roqib Ali being dead his legal heirs: Aziruddin and others (Amirul Kabir Chowdhury J)(Civil) 3ADC 888

Citation: I ADC 3, 2ADC 80, 2ADC 160, 2ADC 172, 2ADC 615, 2ADC 617, 2ADC 788, 2ADC 874, 2ADC 888, 2ADC 973, 3ADC 57, 3ADC 64, 3ADC 83, 3ADC 86, 3ADC 251, 3AD C338, 3ADC 501, 3ADC 573, 3ADC 575, 3ADC 658, 3ADC 660, 3ADC 749, 3ADC 751, 3ADC 837, 3ADC 842, 3

Subject: Criminal Procedure

Delivery Date: 2018-12-02

The Code of Criminal Procedure (V of 1898), Section 144, 561A.

Inherent jurisdiction of the High Court Division will be available even to a party who has lost in Revision before the Sessions Judge under section 493 A. But it must be clearly borne in mind that the jurisdiction under section 561A is not to be used as an additional or an alternative jurisdiction. Shamasuddin vs AmjadAli (Mohammad Fazlul Karim J) (Criminal) I ADC 3

Section 561A

By no stretch of imagination it can not be said that a Managing Director or an employee of a Private Limited Company registered under the Companies Act is a local authority or statutory corporation or a body corporate. Therefore a Managing Director or an employee of Private Limited Company registered under the Companies Act, 1913 can not be said to be public servant within meaning of section 2(b) of the Criminal Amendment Act only because the firm was registered under the Companies Act to start functioning. Khurshid Alam & Md. Shahjahan vs Azizur Rahman(M.M. Ruhul Amin J)(Criminal) 2ADC 80

Section 164, 509A

The Nari-o-Shishu-Nirjatan (Bishesh Bidhan) Ain, 1995, Section 6(1) /14. A statement made under section 164, Cr.P.C can never be used as substantive evidence of the facts stated, but it can be used to support or challenge the evidence given, in court by the person who made the statement". Mr. Hossain @ Foran Miah vs The State (Md. Hamidul Haque J)(Criminal) 2ADC 160

Section 439

Hearing of Revisional Application against acquittal without serving notice upon the person acquitted. The impugned judgment and order of the High Court Division was not proper and legal as being passed without notice to Hezera Khatun. Therefore the Appeal is allowed. Hezera Khatun vs The State (Mohammad Gholam Rabbani J) (Criminal) 2ADC 172

Section 144, 145, 561A

Since both the parties are claiming ownership of the property as co sharers of the common property ends of justice would be met if the receiver continues to remain in possession by dropping proceeding which is contrary to the provision of law. Mvi. Amzad Ali vs Shamsuddin alias Shamsuddoha (M. A. Aziz J)(Criminal) 2ADC 615

Section 561A

The fact that the accused were tried and found guilty and then unsuccessfully filed an appeal and a revisional applica-tion cannot be a ground in the facts of the present case for refusing to exercise the Court's power under section 561-A Cr. P.C. Mofazzal Hossain Mollah vs The State (Shahabuddin Ahmed C J)(Crminal) 2ADC 617

Section 498

On perusal of the First Information Report and the Police reports and in consideration of submissions of the parties we are of the view that the submissions of Mr. Mahmood cannot be brushed aside and, therefore , this is not a fit case at this stage for interference with the judgment and order of the High Court Division as it does not suffer from any illegality. The State vs Kamal Uddin @ Pichchi Kamal (Amirul Kabir Chowdhury J) (Criminal) 2ADC 788

Section 491

It is entirely unacceptable that young girl who is an innocent victim of the alleged offence should remain in an unwholesome almosphere of a Jail for

an indefinite period................ The welfare

of the girl, in on opinion, should be the deciding factor in such a situation. Bashu Dev Chatterjee vs Umme Salma (A.T.M. Afzal C J)(Criminal) 2ADC 874

Section 561A

The provisions in Section 151 C.P.C and the Section 561A Cr. P.C do not empower or authorize the court to make an order affecting the other party in the proceeding without hearing him or in other words in disregard of the time old maxim audi alterem partem. Khurshida Begum vs Golam Mostafa (Md. Ruhul Amin J)(Criminal) 2ADC 888

The Code of Criminal Procedure (V of 1897) Section 256C, 439

The Court, however, shall not pronounce a definite finding of guilt, which function shall be left to the trial Court. The word "sufficient ground for proceeding" do not mean sufficient grounds for conviction. Prima facie material is sufficient for forming an opinion as to the ground for proceeding against the

accused............ (26). Securities and Exchange Commission vs Ruma N. Alam (Mohammad Fazlul Karim J) (Criminal) 2ADC 973

Section 161

We have already found that the doctor who held post mortem examination over the deadbody of the deceased found (1) One healed stitched wound (oblique) on front of the right parietal bone measuring 1" in length. (2) Three abreasinon marks on anterior aspect of left shin each measuring VTX ", "X Va" amd " X W which were healed and scab were formed. In the opinion of the doctor death of the deceased was due to complications of the above mentioned injuries which were ante-mortem and homicidal in nature. Mashuq Mia @ Iqbal vs The State (M. M, Ruhul Amin J) (Criminal) 3ADC 57

Section 265C, 439

The learned Advocate for the petitioner could not point out to any tangible material on record to substantiate the submission that petitioner was entitled to be discharged from the charge framed against him. All Akbor Khan vs The State (Md. Ruhul Amin J) (Criminal) 3ADC 64

Section 561A

The specific allegation of snatching away was mentioned in the FIR and the offence comes within the purview of section 4 and 8 of the Jana Nirapatta (Bishesh Biddan) Ain and provision of Section 3 of the Act prevail over all other acts which are for the time being in force. Enamul Haque vs The State (Syed J. R. Mudassir Husain J) (Criminal) 3ADC 83

Section 561A

This petition is barred by 324 days and the explanation given for the delay is not satisfactory....This petition on merit as well as on point of limitation has got no leg to stand and hence is dismissed. Panna Biswas vs The State (Syed J. R. Mudassir Husain J)(Criminal) 3ADC 86

Section 561A

The High Court Division committed an error in quashing the proceeding although it discloses criminal offence and the High Court Division was wrong in holding that a civil dispute has been turned into a criminal one. The Stat & Allhaj Abdul Wadud Khan vs Omar Faruque Bhuiyan (M.A. Aziz J)(Criminal) 3ADC 251

Section 200, 202, 203, 435, 439 A

That after the dismissal of the petition of complaint under section 203 Cr. P. C the informant respondent's remedy was to approach the Higher Court under section 436 Cr. P. C for further enquiry into his petition of complaint. Neither the Sessions Judge nor the High Court

Division is invested with any power to direct any Magistrate to take cognizance of a case. Their power is strictly limited to directing further enquiry. Yusuf A. Hassan vs K. M. Rezaul Firdous (Mustafa Kamal J)(Criminal)3AD C338

Section 439A, 561A

High Court Division has erred on facts in holding that the possession of the Trawler has not been handed over to the petitioner which is manifestly clear from the documents on record, Jimmanama police report and charge-sheet which are in the additional paper book. Md. Nurul Amin vs Md. Ismail (Syed J. R. Mudassir Husain C J) (Criminal) 3ADC 501

Section 161

Case ended in Final Report submitted by the police finding the case arising out of mistake of fact and stating, inter alia, that no one kidnapped the girl whose statement under section 161 of the Code of Criminal Procedure also bears testimony to the fact that this is not a case of kidnapping or of any other offence charged and as such the impugned judgment and order is bad in law and is liable to be set aside. Md. Gholam Mostafa alias ors. vs The State (Amirul Kabir Chowdhury J)(Criminal) 3ADC 573

Section 164, 374

Witness being the only disinterested elderly neighbour of the informant, his evidence is of immense value which conclusively proved that the prosecution story is false and fabricated afterwards with motive to victimize the accused

petitioners with whom the informant had enmity since the time of their father. Mizanur Rahman alias Mithu vs The State (Amirul Kabir Chowdhury J)(Criminal) 3ADC 575

Section 497

Section 497 of the Code of Criminal Procedure speaks of that when there is a reasonable ground for believing that a person is guilty of offence publishable with death or imprisonment for life, he should not be granted bail. Section 497 of the Code of Criminal Procedure although is a procedural law and the accused having alleged to have committed a substantive offence of murder his liberty may be curtailed. Strictly speaking, the accused respondent is arrested for committing an offence of murder and he may be deprived of his liberty. The State vs Delwar Hossain Talukder (Md. Fazlul Haque J)( Criminal) 3ADC 658

Section 561A

On the face of such statement made in the petition of complaint it cannot be said at this stage before recording evidence of the parties that the proceeding is an abuse of the process of the court or is, therefore, liable to be quashed under section 561A of the Code of Criminal Procedure. In such premises the High Court Division passed the impugned judgment and order and discharged the rule. Mahabubul Goni vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 660

Section 342, 265-1, 265-1(3), 265-1(1), 265(H)

The Court below should allow a reasonable time, i.e, at least a month to produce the said doctor along with the Medical Register of the Dolahazara Hospital and as such wee are of the opinion that the learned Additional Session Judge should serve summon upon the Doctor U.S. Chakma who is presently stationed at Cox's Bazar to appear before the Court with the Emergency Medical Register of Dohazara Hospital dated 3.4.1988 fixing a date of hearing for that purpose. Foyej Ahmed vs The state (Mohammad Fazlul Karim J) (Criminal) 3ADC 749

Section 241(A), 561A

We are of the view that as a result of addition of complainant Md. Ismail as party in the Criminal Miscellaneous Case No. 13540 of 2003 as opposite party No. 2 there is no likelihood of accused petitioners being prejudiced as the said Miscellaneous Case pending before the High Court Division will be decided on merit in accordance with law. Zafar Ahmed Chowdhury and others -vs- The state (Syed J.R. Mudassir Husain CJ) (Criminal) 3ADC 751

Section 145,439,561A

For declaration of her title to the suit property and also for declaration that the power of attorney affidavit dated 08.07.1993 purported have been made by the plaintiff are false, illegal and not binding on her and also for declaration that memo dated 17.07.1993 allowing mutation of the case property has also illegal . Both the suits are said to be pending. Fazlul Kader Chowdhury vs Cyma Zarrar and another (Amirul Kabir Chowdury J(Criminal)3ADC 837

Section 145, 561A

For declaration of title, confirmation of possession and for partition. Md. Abdur Rahman Sikder vs Nur Mohammad Khan and others (MA. Aziz J)(Criminal)3ADC 842

Section 87 and 88

The petitioners were on bail from the beginning and on 06.09.1998, the date of framing charge against them all the petitioners were also present and as such the submission of learned Advocate that the proceeding is continuing in violation of the provisions of Sections 87/88 of the Code of Criminal Procedure has no leg to stand. Md. Sirajul Islam and others vs The State, represented by the Deputy Commissioner, Chittagong and another (Amirul Kabir Chowdhury J (Criminal) 3ADC 844

Section 561A

He further submits that the observation of the Tribunal and the direction High Court is competent to give direction to the court below or tribunal that to take cognizance under Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain and application 561A is not entitiled to take cognizance of the offence under Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1992. Rafiqul Majid Pintu alias Pintu vs The State represented by the Deputy Commissioner of Dhaka (Amirul Kabir Chowdhury J)( Criminal) 3ADC 851

Section 374, 326, 342,164

Where law of the land provides for sentence of death in respect of certain offence and one who has been sentenced to death quite in accordance to law for the commission of the offence providing sentence of death, his contention referring to provision of Article 31 of the Constitution so far provision thereof relates to 'right to life' is not well founded in law. The Death Reference and the aforesaid jail appeal being heard together the High Court Division by the impugned judgment and order accepted the Death Reference and dismissed the jail appeal. Md. Ifiekhar Hasan @ Al Mamun vs. The State (Syed J.R. Mudassir Husain CJ) (Criminal) 4ADC 60

Section 540

While the victim was being teken to the local hospital for treatment, on the way he died on.

Charge-sheet against 15 accused-persons including the leave-petitioners under Section 120 B/302/34 of the Penal Code. Amirul Islam and others vs. The State and another (Syed J.R. Mudassir Husain CJ) (Criminal) 4ADC 175

Section 439A/435

The respondent is a registered Private Limited Company of Bangladesh and is an export oriented industry and manufacturer of poly propylene cover bag used in readymade garments factory and poly propylene is a prime raw material of the said industry and the respondent imported the said goods properly and legally for industrial consumption and as such the imported goods being a banned item as alleged can not be said to be banned item rather it is an importable item and any general importer can import it on payment of proper duty and tax.

The imported goods arrived at Mongla Port on 09-06-2002 from Indonesia and the respondent presented the bill of entry to the Mongla Customs House for assessment and to release the goods and on completion of physical verification the Customs Authority raised objection that Bond Licence submitted with the bill of entry is forged but actually the bond licence is an instrument to facilitate the importers to release imported goods without paying any tax. The Solicitor represented by the State vs. Anisuzzaman Chowdhury and other (Syed J.R. Mudassir Husain Cf) (Criminal) 4ADC 177

Section 561A

Section 561A of the Code of Criminal Procedure for quashing the proceeding of Patenga PS. Case No.9 (5) 2002 under Sections 16/32 of the Customs Act and under Section 3 (1) foreign Exchange Regulations Act, 1947 and 25 (B) of the Special Powers Act, 1974 filed against him and he obtained Rule in the aforesaid Miscellaneous Case. Violating Rules 6 of the "Passenger (Non Tourists)" Baggage (Import) Rules, 2000. The State, represented by the Deputy Commissioner, Chittagong vs. Md. ManzurulAlam (Syed J.R. Mudassir Husain CJ) (Criminal) 4ADC 349

Section 561A

Aforesaid state of the matter no sanction is necessary for the prosecution of the Respondent No.l since order of dismissal passed in respect of the Respondent No.l has been found valid and as such Respondent No. 1 ceased to be an employee of the Bank on and from the date of dismissal i.e. on 25.5.1987. The State vs. Md. Arab Ali, Ex-Manager, Rupali Bank and others (Md. Runul Amin J) (Criminal) 4ADC 535

Section 161, 374

The sentence was modified to that of imprisonment for life in respect of accused Abdul Aziz and sentence of life imprisonment in respect of other accused was also maintained. Abdul Aziz and others vs. The State (Mohammad Fazlul Karim J) (Criminal) 4ADC 625

Section 339C(4), 498

To consider as to whether the appellant could be enlarged on bail being in custody for almost six years without any trial as the further proceeding of the case has been stayed by the High Court Division in Criminal revision. Captain (Rtd.) Nurul Huda vs. The State (Mohammad Fazlul Karim J) (Criminal) 4ADC 695

Section 526

On perusal of the aforesaid prayer it appears that the accused petitioners themelves prayed for transferring the case from the Court of Druto Bichar Tribunal, Rajshahi to any other Druto Bichar Tribunal at Dhaka. S.M. Firoj and others vs. The State (Amirul Kabir Chowdhury J) (Criminal) 4ADC 797

Section 35A, 161, 265C, 342

Dacoity was committed in the house of the informant

In course of dacoity the informant P.W. 1, recognized some dacoits . The police thereafter took up investigation, visited the place of occurrence, prepared the sketch map with separate index, examined witnesses and recorded their statement under section 161 of the Code of Criminal Procedure. Saiful Islam Shaikh vs. The State, represented by the Deputy Commissioner, Gopalgonj (Md. Joynul Abedin J) (Criminal) 4ADC 984

Section 164

The defence case as could be gathered from the trend of cross-examination is total denial and inter-alia case that he did not take part in the occurrence inasmuch as the alleged confessional statement made by him is not true and voluntary but product of physical and mental torture. Delwar Hossain vs. The State (Md. Hassan Ameed J) (Criminal) 4ADC 986

Citation: 3ADC 83, 3ADC 87, 3ADC 179, 3ADC 247, 3ADC 249, 3ADC 253, 3ADC 338

Subject: Criminal Procedure

Delivery Date: 2018-12-03

The Code of Criminal Procedure (V of 1898) Section 561A

The specific allegation of snatching away was mentioned in the FIR and the offence comes within the purview of section 4 and 8 of the Jana Nirapatta (Bishesh Biddan) Ain and provision of Section 3 of the Act prevail over all other acts which are for the time being in force. Enamul Haque vs The State (Syed J. R. Mudassir Husain J) (Criminal) 3ADC 83

Section 328, 420

That the prosecution witnesses having been believed by the learned trial Judge, the High Court Division erred in law in discarding the evidence of the prosecution witnesses for some artificial reasons not warranted by law. The State vs Abul Kalam (Amirul Kabir Chowdhury J) (Criminal) 3ADC 87

Section 302/34

It appears that the learned Judges having properly discussed and considered the prosecution witnesses came to the finding that the petitioner Mostafa inflicted 'Falah' blow on the chest the victim Habibur Rahman with intention to kill him and the victim Habibur Rahman fell down on the ground and died on the spot then and there. Mostafa alias Mosto vs The State (Syed J. R. Mudassir Husain J)(Criminal) 3ADC 179

Section 448/326/307/34, 561A

Whether the High Court Division have committed an error of law resulting in miscarriage of justice in not holding that the proceeding so far as the appellant is concerned is frivolous, vexatious, malafide and groundless and therefore ought to have been quashed and the proceeding being false, concocted, continuation of such proceeding is abuse of the process of the Court and the Appellant standing on the same footing of co-accused Mr. Mashiuzzaman ought to have been released from the charge leveled against her and the proceeding aganst her ought to have been quashed. Mrs. Novara Schute alias ors. vs The State (Mainur Reza Chowdhury J) (Criminal) 3ADC 24

Section 468, 471

Accused petitioner by fraudulent means showed said Marium Bibi being alive and created the 'Heba' Deed on 5-1-1977 in his favour and claimed his ownership of the case land. Abdur Rahman Nazim vs Abdul Rahman Nazim (Syed J. R. Mudassir Husain J)(Criminal) 3ADC 249

Section 302,201/34

The right question the High Court Division was required to ask itself was whether the circumstances proved in the case were incapable of any other hypothesis than that of the guilt of the accused and whether the circumstances relied upon by the learned Sessions Judge were conclusive for the inference of guilt of the accused and whether the circumstances relied upon by the learned Sessions Judge were conclusive for the inference of guilt against the accused or not. The State vs Khandker Zillul Bari& Zahirul Alam Kamal (Amirul Kabir Chowdhury J)(Criminal) 3ADC 253

Section 200, 202, 203, 435, 439A

That after the dismissal of the petition of complaint under section 203 Cr. R C the informant respondent's remedy was to approach the Higher Court under section 436 Cr. R C for further enquiry into his petition of complaint. Neither the Sessions Judge nor the High Court Division is invested with any power to direct any Magistrate to take cognizance of a case. Their power is strictly limited to directing further enquiry. YusufA. Hassan vs K. M. Rezaul Firdous (Mustafa Kamal J) (Criminal) 3ADC 338

Citation: 7 BLT (AD)-14, 7 BLT (HCD)-152

Subject: Company

Delivery Date: 1970-01-01

Section-95 - Temporary Injunction

The courts are generally reluctant to interfere with the decisions taken at company meetings unless there is almost a manifest breach of the Articles or the statute, because it is the company and not the Court which is responsible for its management. [Para- 121

Moharnmad Mohibul Ahsan(Shawart) & Ors. Vs. Ittefaq Group of Publications Ltd. 7 BLT (AD)-14

Whether any conflict between the Companies Act and the Trade Organisations Ordinance, 1961

Held: I am of the view that in the case of a trade organisation, provisions of the Companies Act shall be applicable, subject to the provisions of the Trade Organisations Ordinance. Thus I find no conflict between the Companies Act and the Trade Organisations Ordinance, 1961. [Para-3 11

Ibrahim Cotton Mills Ltd. Vs. Chittagong Chamber of Commerce & Industry Ltd. & Ors. 7 BLT (HCD)-152.

Citation: 3ADC 660

Subject: Companies

Delivery Date: 2018-12-03

The Companies Act (XVIII of 1994) Section 397.

On the face of such statement made in the petition of complaint it cannot be said at this stage before recording evidence of the parties that the proceeding is an abuse of the process of the court or is, therefore, liable to be quashed under section 561A of the Code of Criminal Procedure. In such premises the High Court Division passed the impugned judgment and order and discharged the rule. Mahabubul Goni vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 660

Citation: 4ADC 385, 2ADC 822

Subject: conduct of Election

Delivery Date: 2018-11-20

The conduct of Election Rule, 1972

That the Acting Chief Election Commissioner had acted forum non judice in exercising his power in this particular case. The learned Judges of the High Court Division unnecessarily wrote a long judgment without touching on the vital issue raised in the present case before it.

Since we are holding that the order of Acting Chief Election Commissioner is corum non judice it is needless for us to go into the question as to whether the action of the Acting Chief Election Commissioner was a quasi-judicial one or one in his administrative capacity. Jatiya Party vs. Election Commission for Bangladesh and others (Latifur "Rahman CJ)(Civil) 4ADC 385

Consequential Relief must be sought

When the plaintiff himself is a party to some kabalas a purely declaratory suit is not maintainable. The plaintiff must seek further consequential relief by way of cancellation of the deeds. Md. Nazir Hossain Khan vs Md. Mujal Mollah, Shahida Begum (Mustafa Kamal JXCivil) 2ADC 822

Citation: 4 ADC 252, 4ADC 321, 4 ADC 344, 4ADC 389

Subject: Constitutions of Bangladesh

Delivery Date: 2018-11-20

The Constitutions of Bangladesh Article 27 and 29(1)

We have held that this contention of the writ-petitioner has no merit since the amendment was made at a time when writ-petitioner was not a contender of the post in which he was appointed and he joined in 1995. It is the contention of the learned Counsel that lapse of time is no bar in challenging legality of certain law or the Rules. The said contented would be of worth consideration in a case where the person complaining was affected by the amendment in the law. But in the instant case there in no such situation. It may be mentioned in the instant case amendment in the schedule of the Rules of 1980 was made in 1986 and the writ petitioner having had the notice thereof joined in his service in 1995. So the aforesaid contention in the background of the facts of the instant case is of no merit. Md. Muinuddin Zulfiquer vs. Government of the People's Republic of Bangladesh (Md. Ruhul Amin J) (Civil) 4 ADC 252

The Constitutions of Bangladesh Article 103

Appellant's seniority is to be determined on the basis of the circular No.l of 1960. The Tribunal also held that since a continuing Circular has been challenged on the ground of lack of juruisdiction the question of limitation does not arise in this case. The appellant's case was allowed. On appeal by the respondent-Bangladesh Bank the Administrative Appellate Tribunal held that the Administrative Tribunals Act, 1980 was made applicable to Bangladesh Bank by effective from 25-9-84. As per section 4(2) of the Administrative Tribunals Act, 1980 the appellant ought to have filed an appeal against the Staff Order No. 176/79 dated 3-7-79 within 6 months from 25-9-84. He having kept quiet for more than six months from 25-9-84 filed a representation or appeal for the first time on 27-5-86 and as such his representation or appeal was barred by limitation and it was not a representation/appeal in the eye of law. His case before the Administrative Tribunal was, therefore, not maintainable. Md. Nurul Huq-IV vs. Governor, Bangladesh Bank, Head Office, Dhaka and others (Mustafa Kamal J) (Civil) 4ADC 321

The Constitutions of Bangladesh Article 98

Whether the provisions of section 141 of the Code of Civil procedure providing that "the procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction", apply in terms to proceedings in writ in the original constitutional jurisdiction of the High Court Division under article 102 of the Constitution. It is fundamental that the court exists for doing justice and for doing ends of justice such power must exist in every court be it a Civil court, a criminal court on a writ court. Civil cases and criminal cases are governed by the Code of Civil procedure and Criminal procedure. But in writ case there is no such procedure other than the existing rules as mentioned above. Power to do justice is the basic pre-requisite of a court and if a court feels that injustice has been done in a case it can adopt such procedure as it thinks fit.

In the code of Civil procedure there is a provision under Order 9 rule 13 to set aside an exparte decree in a Civil case. The writ court being not a civil court it does not specifically possess that power. There being no express rules in this regard, it must be held that the writ Court must possess this power for doing justice in a case and whether the court will exercise such power is a matter of judicial discretion for that court. Moni Begum and others vs. Rajdhani Unnyan Kartripakha (RAJ UK) and other (Mustafa Kamal J) (Civil) 4 ADC 344

The Constitutions of Bangladesh Article 31, 32 and 36

Violation of Universal Declaration of Human Right as recognized under Article 13 of the Universal Declaration of Human Rights and also on violation of principle of natural justice and on mala fide. Hussain Muhammad Ershad vs. Bangladesh and others. (Latifur Rahman CJ)(Civil) 4ADC 389

Citation: 2ADC 969

Subject: Criminal Law Amendment

Delivery Date: 2018-12-03

The Criminal Law Amendment Act (XL of 1985), Section 5(2), 6(5).

The instant case in the background of the fact noticed above is not a case of exceptional nature calling for quashing on the ground of delay or for exercise of discretion or of doing complete justice by way of quashing the proceeding of the case initiated and pending against the Respondent No. 1 and others. The State vs Md. Arab Ali, Ex-Manager, Rupali Bank (Md. Ruhul Amin J)(Criminal) 2ADC 969

Citation: 3ADC 848

Subject: Cruelty to Women

Delivery Date: 2018-12-02

The Cruelty to Women (Deterrent Punishment) Ordinance, 1983 Sections 6 and 9

Most erroneously held that the injury was not caused for the non payment of dowry though from the evidence on record it is evident that the accused respondent after marriage used to demand dowry from Monira and subsequently drove her from his house without her minor son and asked her to bring Tk. 70,000/- from her father and then on 9.4.1990 the accused respondent abducted the victim and committed the offence of grievous hurt upon her and so the offence falls within the purview of section 6 of the Ordinance No. LX of 1983 and the High Court Division without considering the same most erroneously observed that the trial was held without jurisdiction; the High Court Division in any view of the matter committed error of law in not sending the case to the proper Court on remand for proper trial in general criminal Court to deal with the convict under the general criminal law against the allegation brought against him. Miah Mojibur Rahman vs Khondoker Nazmul Haque (Chiru) and others (Md. Tafazzul Islam J) (Criminal) 3ADC 848

Citation: 3ADC 40, 3ADC 634, 2ADC 247, 2ADC 718, 4ADC 284, 4ADC 236, 2ADC 713, 5ADC598, 3ADC 326, 3ADC 332, 3 ADC 194, 3ADC 882, 3ADC 914, 3ADC 616, 3ADC 743

Subject: Customs

Delivery Date: 2018-11-20

The Customs Act, 1969 (IV of 1969), Section 21(a).

The respondent has not stated in his petition as to the nature and character of the duplex board and that how the same could be converted into boxes or paper board or inner or master carton as admittedly the respondent do not have manufacturing plant to convert duplex boards into inner and master carton and that inner carton and master cartons converted out of duplex boards would not change their original shape or form while making them into cages or boxes National Board ofRevenu vs Mustafizur Rahman (Mohammad Fazlul Karim J) (Civil) 3ADC 40

Section 180

The order states that the appellant has not given any satisfactory explanation as to why there was a long gap between the time of submission of bills of entry in November, 1989 and the physical examination of the goods in February, 1990 Thus the revisional authority was also of the view that the appellant himself contributed to the customs authority's rejection of his prayer for chemical examination. Md. Morzul Haque vs. Bangladesh (Mustafa Kamal J)(Civil) 3ADC 634

Section 180

A plain reading of the quoted section is sufficient to hold that only that person is entitled to get a show cause notice from whose custody the good in question is seized. But in the instant case the goods were seized from an abandoned truck and therefore the order of confiscating the goods in the absence of the show cause notice under the section could not make the order of confiscation as illegal. Bangladesh vs Abu Musa (Mohammad GholamRabbainJ)(Civil) 2ADC 247

Section 18, 19, 25(1) (2) (3), (7), 30A

The High Court Division in the respective writ petitions committed illegality in directing the customs authority to assess the customs duty etc, on the basis of invoice value that was prevailing at the time of opening of letters of credit inasmuch as customs authority has the authority to determine normal value and realise duty thereon at the rate prevailing on the date of submission of the bill of entry. Commissioner of Customs, Chittagong vs Bangladesh Traders (Md. Tafazzul Islam J')(Civil) 2ADC 718

Customs Act, 1969, Section 180

That only that person is entitled to get a show cause notice from whose custody the good in question is seized. But in the instant case the goods were seized from an abandoned truck and therefore the order of confiscating the goods in the absence of the show cause notice under the section could not make the order of confiscation as illegal. Government of Bangladesh and others vs. Abu Musa (Mohammad Gholam Rabbani J) (Civil) 4ADC 284

The Customs Act, Section 25(7)

The Government, however, fixed tariff value of the CP sheet at US$ 1800/- per metric ton vide SRO No. 214-Ain/93/1527/Shulka dated 28.10.1993 and accordingly assessed the duties and taxes ignoring invoice value of the appellants' goods at US$ 2.17 and 2.91 per Rim. Thus the writ-petitioners have challenged the same as arbitrary and without lawful authority as the said papers were liable to be assessed at US$ 835.49 per metric ton instead of its tariff value at US$ 1800/- per metric ton which is contrary prevailing the international market having no nexus thereto and inflated one.

Usually invoice value is the basis of assessment of custom duty but in order to prevent under-invoicing and over-invoicing by the importer or exporter either in a bid of avoid payment of proper duty or smuggle out foreign exchange, section 25(7) has been introduced providing power vested in the Government to fix tariff value of imported or exported goods and accordingly, when the Government finds from materials that the importer or exporter have taken resort to under-invoicing or over-invoicing and in order to protect realisation of proper customs duty, and to protect the local industrial selfsame product, the Government is obliged to fix tariff value of the imported goods. Fiscal law containing charges and duties specified thereto having the basis in Article 83 of the Constitution, the object of which is to introduce a fiscal clause respect of any import or export which touches each and every citizen of the country who are the ultimate consumers and pay the assessed tax as tariff value and as such the writ petitioners have no personal grievance in the fixation of tariff value in respect of any imported goods and accordingly, the writ-petitioners could not have any grievance against the said fixation by the Government. Mahfuzul Hoque, Golam Mostafa vs. The Collector of Customs, Customs House, Chittagong & others (Mohammad Fazlul Karim J) (Civil) 4ADC 236

Danish Ali Vs. Sakina Bai 4 BLC(AD) 68.

The High Court Division cannot grant full relief by way of disposing a revi-sional application summarily without issuing any Rule and behind the back of the affected party without affording any opportunity to place his case which i^

neither legal nor fair......... (8). Jabbar Jute

Mills Ltd vs Md. Abul Kashem (M.M.RuhulAminJ) (Civil) 2ADC 713

Danish Ali and others vs. Sakina Bai and others reported in 4 BLD (AD) 68

Declaration of title and recovery of khas possession of the second schedule land claiming title and ownership of the land ...(2) Jabbar Jute Mills Ltd. vs. Md. Abul Kashem (M.M. Ruhul Amin J) (Civil) 5ADC598

Decree for specific performance of contract for sale of land.

Findings of criminal court, cannot be considered by the Civil courts save and except the factum of conviction and sentence. Abdul Mannan vs Tayeb Ali ors. (Md. Ruhul Amin J)( Civil) 3ADC 326

Declaration of title.

The uniform view of the superior Courts is that an order of remand is not legally sustainable while the same tantamount to fresh trial of the subject matter of the suit upon allowing a party in the suit, who was negligent in bringing on record the materials which were relevant for adjudication of the subject matter of the suit or in other words to allow a party to fill up the lacuna. The order of remand is also not sustainable in law while same gives and opportunity to a party in the suit to make fresh attempt on the basis of the order of remand to establish his claim in respect of the subject matter of the suit which he earlier failed. Jagabandhu Sarker vs Jotish Chandra Sikder (Md. Ruhul Amin J)(Civil) 3ADC 332

The Deputy Commissioner during the susistence of lease cancelled the lease.

It appears that the plaintiff cancelled the lease and did not deliver the possession of the land in favour of the defendant. In such view of the matter we are unable to understand what prompted the palintiff to file the suit for cancellation of the deed of lease on the face of ^Mc*ll*Hl*tat t#FF" between the parties. Bangladesh vs Mega Fisheries Limited (Amirul Kabir Chowdhury J)(Civil) 3 ADC 194

Decision related to cancellation of auction notice

Writ petitioner being not aggrieved has got no locus standi and so the writ petition itself was not maintainable. M/S Ashraf and sons represented by its Proprietor, Ali Ashraf-vs-Md. Zahangir Alam & ors (Amirul Kabir Chowdhury J) (Civil) 3ADC 882

For declaration of title and recovery of khas possession

Lower appellate Court rightly sent the case on remand to the trial Court for ascertaining the claim of the parties on the basis of their respective original deeds after determining their genuineness and as such the High Court Division ought to have remanded the case to the trial Court for deciding the matter in controversy between the parties. So the findings and decisions of the High Court Division can not be sustained in law. Bhulu Miah and others -vs-Begum shakhina Khatun and oth-ers(Syed J.R. Mudassir Husain CJ) (Civil) 3ADC 914

Decree itself was objected to on the ground that without payment of ad -valorem Court fee the relief for setting aside the decree could not be granted. Defendant agreed to the plaintiff's proposal and asked it to.

The plaintiff could not take delivery of the contracted goods owing to this unreasonable and Decree passed by the learned Subordinate Judge was severable and in so far as it relates to the declaratory part, it ought to have been upheld or in the alternative the plaintiffs should have been given an opportunity to pay the ad-valorem Court fee if they wanted to have the benefit of the other part of the decree also even though it was not necessary for them, but the learned District Judge and the High Court division failed to do either occasioning an apparent failure of justice. Md. Umed Ali vs Mst. Hamida Khatoon (A. T. M. Afzal CJ)(Civil) 3ADC 616

adamant attitude of the defendant who forfeited the earnest money paid by the plaintiff and invited a fresh tender adding further conditions. National Bank Ltd. vs Pragati Industries Ltd. (Amirul Kabir Choudhury J)( Civil) 3ADC 743

Citation: 3ADC 763, 4 ADC 173, 2 ADC 116, 3 ADC 958

Subject: East Bengal (Emergency)

Delivery Date: 2018-11-20

Section 3 of the East Bengal (Emergency) Requisition and Property Act, 1949

Notice of acquisition was published in the official Gazette on 28.03.1968 and as such the land absolutely vested in the Government free from all encumbrances and the right, title and interest of the original owners extinguished. Wega Fashion Sweater (PVt.) Ltd. represented by its M.D. Nurul -vs- Syed Sajeda Hossain & others (M.M. Ruhul Amin J) (Civil) 3ADC763

High Court Division committed error in not appreciation that the respondent Nos.l to 3 are in the service of the Republic and thus they cannot compel the Government in the matter of upgra-dation and that recommendation sim-pliciter does not entitle anybody to claim the upgradation as of right and that on right thus being accrued in favour of the writ petitioners the High Court Division committed error in making the rule absolute. Dock Workers Management Board, Post Training Centre, Police Station-Bandar vs. Muhammad Ismail and others (Amirul Kabir Chowdhury J)(Civil) 4 ADC 173

The East Bengal (Emergency) Requisition of Property Act, (XIII of 1948), Section 3.

Knowledge cannot be a substitute for actual service of notice which is the requirement of the statute. Md. Abdul Majid Daria vs Bangladesh (Bimalendu Bikash Roy Choudhury J)(Civil) 2 ADC 116

Election petition being Election Tribunal Case

Recounting of the ballot papers and to declare him as a member in place of declared candidate stating, inter alia, that election was held for the post of Chairman and Members on 04.03.2003. After the counting of the ballot papers at the election center no objection was raised by the Respondent regarding error in counting ballot papers and on such application was filed either before the Presiding Officer or the Returning Officer or any higher authority. He further submits that a case of recounting is to be established from the stage of counting of ballot papers but in the instant case no such case has been made out and the case of recounting was for the first time made out before the Tribunal and as such the Tribunal was not justified in recounting the ballot papers as no objection was raised for the same before the Presiding Officer of the Center. As a result, the High Court Division committed illegality in passing the impugned judgment and order on misconception of law and materials on record. Md. Badshah Alam vs.Md. Shahidul Islam & others (MM. Ruhul Amin J)(Civil) 3 ADC 958

Citation: 2ADC 175, 2ADC 506

Subject: Election

Delivery Date: 2018-11-20

The Election Rule, 1972, Rule 9(1).

Barnard and others Vs. National Dock Labour Board and another, 1953(1) All England Law Reports 1113.Vine Vs National Dock Labour Board, 1956(3)A11 England Law Reports 939. Allingham and another Vs. Minister of Agriculture and Fisheries, 1948(1) All England Law Reports 780. Jamal Shaha, 18 DLR(SC) 1.

On a careful consideration of the law on the subject we are of the view that the Acting Chief Election Commissioner had acted Coram non judice in exercising his power in this particular case. Jatiya Party vs Election Commission for Bangladesh (Latifur Rahman C J)(Civil) 2ADC 175

Enemy Property

Since the law of enemy property itself died with the repeal of Ordinance No. 1 of 1969 on 23.3.1974 no further vested property case can be started thereafter on the basis of the law which is already dead. Mrs. Saju Hose in & Mrs. Rani Beguma vs Bangladesh (Md. Tafazzul Islam J)(Civil) 2ADC 506

Citation: 5ADC 541

Subject: Emergency Power

Delivery Date: 2018-11-22

The Emergency Power Ordinance, 2007, Section 3(3K)

Obtain bail in the instant case filed against her under Sections 385/109 of the Penal Code. Government of Bangladesh vs. Sheikh Hasina and another (Md. Abdul Matin J) (Civil) 5ADC 541

Citation: 10 ADC 351

Subject: Emergency Power

Delivery Date: 2018-11-05

The Emergency Power Rules, 2007, Rule 15 Gha(5)

On submission of subsequent amendment to the wealth statement he was refused resulting in filing the Writ Petition. A.H. M. Mustafa Kama I vs. Government of the People's (Md. Abdul Matin J) (Civil) 46

Rules 15,15Ka, 15Kha, 15Gha(5)

learned Special Judge, on examination of witnesses and other evidence on record, found the respondent no. 1 guilty of the charges of concealing various amounts and possessing those beyond his known source of income and on those findings, by his Judgment and Order dated 26.07.2007, convicted and sentenced him to suffer simple imprisonment for 3 years under Section 26(2) of the Act read with rule 5Gha(5) of the Emergency Powers Rules, 2007 and rigorous imprisonment for 10(ten) years under Section 27(1) of the Act and to pay a fine of Tk. 10,00,000/- (Taka ten lac), in default, to suffer 1 (one) year imprisonment more and also forfeited his properties. The Anti-Corruption Commission vs. Dr. Muhiuddin Khan Alam-gir (A. B. M. Khairul Haque J)(Civil) 10 ADC 351

Citation: 5ADC 409, 5ADC 411, 4ADC 331

Subject: Emergency Requisition

Delivery Date: 2018-11-20

The (Emergency)Requisition of the Property Act, 1948, Section 14(A)

Declaration of title, recovery of Khas possession of the suit land, permanent injunction and for some other relief on the averment that a piece of land. M/S Haque's bay vs. Mrs. Jahanara Ahmed (Md. JoynalAbedin J')(Civil) 5ADC 409

The petitioner has field Civil Petition for leave to appeal with the prayer for staying the order of the High Court Division dated November 18,2007. Anti-Corruption Commissioner vs. Fazlur Rahman and others(Civil) 5ADC 411

The Emergency Requisition Act, 1948, Section 8B

The Ministry passed the impugned order for derequisition "for avoiding legal complication". Legal complication has not been explained or elaborated in the impugned order. It appears that soon after the order of derequisition dated July 20, 1983, the owner got the land back and transferred the same to different persons. What ever may be the legal complication there, it was the appellants' own seeking. The order of derequisition was passed in violation of Section 8B of the Emergency Requisition Act, 1948. After Compensation is paid for acquisition of land no order can be made for derequisition of such acquired land. Apart from the violation of Section 8B of the Act the impugned order also suffers from another infirmity. The impugned order was passed by the Ministry without giving any hearing to respondent No.l. The apellants' contention that respondent No.l was given a hearing during on-the spot-enquiry by the Deputy Land Reforms Commissioner will not be a sufficient compliance of the principle of natural justice, because the impugned order was passed not by the Deputy Land Commissioner, but the Ministry. Respondent No. 1 did not get any opportunity to place his case and his views on the enquiry report of the Deputy Land Reforms Commissioner. Bangladesh represented by the Secretary Ministry of L.A. & L.R. and ors vs. M/S. Commercial Trust of Bangladesh Ltd. and ors (M.H. Rahman J) (Civil) 4ADC 331

Citation: 5ADC 826, 5ADC 835.

Subject: (Emergency) Requisition of Property

Delivery Date: 2018-11-22

The (Emergency) Requisition of Property Act, 1948

Directing the writ-Respondents to release the land of the writ-petitioners upon demarcating the same and to handover possession of the land within 4 months from the date of receipt of the copy of the judgment and in case of failure on the part of the authority the writ-petitioners would be at liberty to take appropriate legal action against the writ-Respondents. Chairman, T& T Boar vs Md. Rafiqur Gaznavi (Md. Ruhul Amin J)(Civil) 5ADC 826

1984 for declaration of title in the first schedule land measuring .70 acres. ...(3) Md. Motiruddin Mondal vs. Full Mohammed Mollah (M.M. Ruhul Amin J) (Civil) 5ADC 835.

Citation: 3 ADC 205, I ADC 473, 2ADC 8, 2ADC 738, 2ADC843, 2ADC 326, 2ADC 489, 3 ADC 197

Subject: Emergency Requisition of Property

Delivery Date: 2018-11-22

The Emergency Requisition of Property Act, (XIII of 1948) Section 3, 5(7).

Acquisition and Requisition of Immovable Property Ordinance, 1982 (Ordinance No. II of 1982). Declaration of her title in respect of the compensation money.

A bonafide mistake as to the quantity of land in the Gazette notification of August 11, 1983 the said mistake was corrected by the subsequent Gazette Notification. Government vs Most. Nurjahan Begum (Md. Ruhul Amin J) (Civil) 3 ADC 205

Section 14(1)

Regard being had to the findings and decisions arrived at by the lower appellate court as to possession of the suit land which is based on materials on record we are of the view that the High Court Division exceeded in its revision-al jurisdiction and illegally set aside the findings and decisions arrived at by the lower appellate court without noticing that the trial court was wrong in passing a decree for permanent injunction without any definite finding of possession in the land in suit by the plaintiff respondent. Deputy Commi.vsioner , Dhaka vs Abdul Hakim (Syed J. R Mudasssir Husain, J)(Civil) I ADC 473

The Emergency Requisition of Property (Amendmend) Ordinance, 19631Section 14A.

The settled law is that upon acquisition of particular property the same vests in the Government and that being the position in law the prayer for release made by the Respondents was totally misconceived one since under the law they were not entitled to have the property released. Director of Housing and Settlement, vs Abdul Majid Howlader (Md. Ruhul Amin J) (Civil) 2 ADC 2ADC 8

The Emergency Requisition of Property Act ( XVI of 1948), Section 5.

There should be some proximity between the requisition notice of acquisition and of actual acquisition, in the facts and circumstances of the instant case that no step has yet been taken for acquisition of the land on publication of the notification under section 5(7) of the Act, we direct the authority to take immediate steps to that effect and assess the compensation at present market value. Rajshahi Development Authority vs Sultan Ahmed (Mohammad Fazlul Karim J) (Civil) 2ADC 738

Section 3

From whichever angle the question is considered, we are firmly of the view that the date of correction or amendment of the decree under section 152 cannot be the starting point of limitation for the purpose of filing an appeal against the decree. Bangladesh vs Luxmi Bibi (Shahabuddin Ahmed C J)(Civil) 2ADC843

The Emergency Requisition of Property Act, (XII of 1948) Section 5(7).

The judgment of the High Court Division being based on wrong and incorrect presumption i.e. the land in suit has been acquired by the Government and thereby vested in the Government and the fact of non-acquisition having been established by the Memo, dated 22.11.2003 written by the Deputy Commissioner, the finding of the High Court Division that because of vesting of the land in suit upon acquisition by the Government the plaintiffs did not acquire any right, title and interest in the land in suit is not legally sustainable. Nurun Nabi Mullah vs Abdul Karim alias M.A. Karim (Md. Ruhul Amin J)(Civil) 2ADC 326

The Emergency Requisition of Property Act (XIII of 1948) Section 8B.

The Govt's choice to withdraw any property from acquisition as conferred by section 8B of the Act must be exercised before the payment of compensation and not after it . The second limitation is that such order of withdrawal must be done by a notification published in official gazette. Bangladesh & L. R. vs M/S. Commercial Trust of Bangladesh ors. (M. H. Rahman J')(Civil) 2ADC 489

The (Emergency ) Requisition of property Act, 1948 (Act 13 of 1948), Section 5(7).

In case authorities take decision to requisition and acquire the land of the writpetitioners then the authority would be competent to do the same in accordance with the provision of the law relating to the matter of acquisition and requisition of land in force. Chairman, T& T Board vs Md. Rafiqur Gaznavi(2) (Md. Ruhul Amin J )(Civil) 3 ADC 197

Citation: 2 ADC 57, 2 ADC 128, 2 ADC 131, 1ADC 198, 2ADC 569, 2ADC 701, 2ADC 728, 2ADC 825, 2ADC 728, 2ADC 825, 2ADC 900, 5ADC 217, 2ADC473, 5ADC 289

Subject: Employment of Labour

Delivery Date: 2018-11-22

The Employment of Labour (Standing Order) Act, 1965 Section 25, 18(1)

Writ of certiorari under Article 102(2)(a)(ii) of the Constitution authorizes the High Court Division to issue the writ for declaring an order or an act done or proceeding taken to be without lawful authority and of no legal effect. Thus the Court could interfere only when a person proceeded against has done the act or action taken is vitiated by an act of lack of jurisdiction or by being in excess of jurisdiction. The Superintendent James Finlay P.L.C. vs The Chairman, 2ⁿ⁽^ Labour Court (Mohammad Fazlul Karim J)(Civil) 2 ADC 57

The Employment of Labour (Standing Orders) Act, (VIII of 1965), Section 25.

The impugned letter of termination does not contain any stigma upon respondent No. 2 and on the face of it is a termination simpliciter and is well covered by the provision of section 19 of the Act. The termination was not a sequel to any trade union activity on the part of the respondent No. 2 nor does he claim that no termination benefit was not given tohim. In this view of the matter, we find merit in the appeal. Adamjee Jute Mills Ltd. vs Chairman (Muhammad Abdur Rouf J) (Civil) 2 ADC 128 Section 17 (3) (d), 25

....the employee shall submit has grievance in writing by registered post within 15 days of the occurrence of the cause of such grievance . So, in the law itself the expression "from the date of order" or "from the date of knowledge are not used. M.A. Mannan vs The Chairman (Md. Hamidul Haque J)(Civil) 2 ADC 131

Section 17 (3) (b)

If there was a failure on the part of the Labour Court in granting relief to the respondent under the law the only course open to the High Court Division was to send the case back to the said court for passing an order in accordance with-law. Bangladesh Tobacco Company vs Md. Azizul Huq (Mahmudul Amin Choudhury C. J) (Civil) 1ADC 198

The Employment of Labour (Standing Orders) Act (VII of 1965), Section 16.

The period of illness and the recurrence of illness are not the only criteria for determining the health of a worker. It is the nature of the disease, its duration and its effect on the soundness of the health of the worker in performing his assigned job that determines his "continued ill-health". M/S. Karim Jute Mills vs Chairman, Second Labour Court Dhaka (Mustafa Kamal J)(Civil) 2ADC 569

Section 25

That by not submitting the grievance by registered post but submitting it by hand the respondent No. 1 cannot be held responsible for not complying with the requirement of law. Bangladesh vs Md. Esken Mollick (Amirul Kabir Chowdhury J)(Civil) 2ADC 701

Section 17

Since the respondent No. 2 was a worker and served for 15 years in the appellant company we are inclined to allow him (respondent No. 2) to have some benefits and accordingly we allow the appeal, but with modification inasmuch as the order of dismissal is converted into an order of termination and the respondent No. 2 shall be given termination benefits as permissible under the law. Chittagong Jute Manufacturing Co. Ltd vs Chairman 1st Labour Court, (Md. Fazlul Haque J')(Civil) 2ADC 728

Section 17,18,25

Both the courts below committed an error of law in construing section 17(l)(a) where the provision of section 18 of the Act is not required to be complied with because the order of dismissal is not on ground of misconduct rather it is on ground of conviction and sentence passed by a Competent Court of Criminal jurisdiction. Star Jute Mills Ltd vs The Chairman, Labour Court (M.A. Aziz J)(Civil )2ADC 825

Section 4

Though the appellants have its own rules and could adopt resolutions regulating the terms and conditions of service but could not adopt the resolution concerning the conditions of the respondents less favourable to a worker than that the provisions of the law. Kondoker Mominul Huq, M.D., BGS. Ltd vs Md. Jasimuddin Chowdhury TO, ors. (Mohammad Fazlul Karim J)(Civil) 2ADC 900

The Employment of Labour (Standing Orders) Act, 1965 Section 25

Employees of the petitioner herein filed the aforesaid complaint cases claiming themselves as the workers and they have been dismissed from the service without following the procedure. Bangladesh Film Development Corporation vs. The Chairman, First Labour Court (Md. RuhulAmin CJ) (Civil) 5ADC 217

The Employment of Labour (Standing Orders) Act, (VIII of 1965), Section 16.

Section 16 of the Act has vested an authority in the employer to discharge an employee when he is physically incapable of serving the employer or suffers from continued ill health or for such other reason not amounting to misconduct. In such cases the employee shall be entitled to certain financial benefits. Mohsen Jute Mills vs Chairman, Khulna (Mohammad Abdur Rouf J)(Civil) 2ADC473 The English Companies Act, 1985, Section 459,461

Since the title in the suit land belonged to the plaintiff and was not challenged, the plaintiff field a suit for cancellation of deed only ,followed by a consequential relief of recovery of khas possession. He next submits that the Government is not an interest party in the present suit land and as such there is no need for making the Government a party in the suit as the present suit is neither for specific Performance of Contract nor declaration of title and thus the provision of P.O. 142 of 1972 are not applicable in the present case. Md.Shahidur Islam vs. Md.Habibur Rahman (Mohammad Fazlul Karim J) (Civil) 5ADC 289

Citation: 3 ADC 45

Subject: Employment of Labour

Delivery Date: 2018-11-22

The Employment of Labour (Standing Order) Act (VIII of 1948), Section 19.

We have called for the office records and registers of the appellants to see by ourselves whether the respondent was entitled to the claim of the said amount as a permanent worker but we could not find any material on record to show that he is a permanent employee or he is either entitled to any overtime or bonus or any Tiffin, far less any entitlement of any arear bonus. Shaw Wallace Bangladesh Ltd vs Abdul Hakim (Mohammad Fazlul Karim J)(Civil) 3 ADC 45

Citation: 3ADC 394, 3ADC 575

Subject: Evidence

Delivery Date: 2018-12-03

The Evidence Act. (I of 1872), Section 114(g).

Departing from the FIR, a story of blasting of bomb has been imported by the prosecution in evidence, which made the prosecution case more shaky. The State vs Wasikur Rahman (Amirul Kabir Chowdhury J) (Criminal) 3ADC 394

Section 114(g)

Witness being the only disinterested elderly neighbour of the informant, his evidence is of immense value which conclusively proved that the prosecution story is false and fabricated afterwards with motive to victimize the accused petitioners with whom the informant had enmity since the time of their father. Mizanur Rahman alias Mithu vs The State (Amirul Kabir Chowdhury J)(Criminal) 3ADC 575

Citation: 4ADC 278, 5ADC 108, 5ADC 193, 4ADC 56, 4ADC 257, 4ADC 573, I ADC 481, I ADC 485, 1 ADC 421, I ADC 445, 4ADC 278, 4 ADC 838, I ADC 294, 4 ADC 866, 1 ADC 462, 4 ADC 964, 3 ADC 319, 2 ADC 27, 2 ADC 50, 2 ADC 96, 2 ADC 107, 2ADC 231, 2ADC 293,2ADC 4

Subject: Evidence

Delivery Date: 2018-11-22

The Evidence Act, Section 114 (g)

The officer who was directly in charge of the godown, was at first found guilty of misappropriation and was accordingly punished, but the departmental review board exonerated him ignoring the said officer's admission that he forged the signature of the respondent in the indent and that the evidence of the PWs that the signature in the indent was that of the respondent should not had been treated as legal evidence for not examining the disputed signature by a hand writing expert. The learned trial judge obviously had in his mind section 114(g) of the Evidence Act while considering this issue. Dhaka Water Supply & Sewerage Authority and others vs. Matiar Rahman (Mohammad Gholam Rabbani J)(Civil) 4ADC 278

The Evidence Act Section 79, 77, 65(e)

The question of admissibility of Ext.A, B and C did not arise at all in as much the sale deeds were executed and registered during the pendency of the preemption case and the appellate court, the final court of facts, having found that the sale deeds were collusively created in the name of fictions persons reversed the finding of the trial court to the effect that the pre-emptors having already exhausted their right, title and interest in the case holding by those sale deeds, they had no right for pre-emption. Abdul Wazed Sharif vs. Shudhir Ranjan Biswas (Md. Tafazzul Islam J) (Civil) 5ADC 108

The owner of the property challenged the action of the Government in treating the property in question as abandoned property and finally it was adjudicated that the property is not an abandoned

property.......... (2) Pubali Bank Ltd vs.

The Government of the Peoples Republic of Bangladesh. (Md. Ruhul Amin J) (Civil) 5ADC

The Evidence Act, Section 73

The defendants filed Other Suit No. 11 of 1993 challenging the order of dissolution dated 13.1.1993 of the said committee praying for a declaration that the said order of dissolutions dated 13.1.1993 was illegal .... (4) Sarder Md. Hashim Zaman & others vs. Thana Nirbahi Officer (Md. Joynul Abedin J) (Civil) 5ADC 193

The Evidence Act, Sections 91 and 92

The suit was filed seeking declaration that the deed of exchange dated March 21, 1993 is not a deed of exchange but a deed of sale. Abdul Majid alias Mujibur Rahman Molla vs. Md. Abdul Matin and others (Md. Ruhul Amin J) (Civil) 4ADC 56

The Evidence Act, Section 91

In a suit for permanent injunction the primary question for determination is the possession of the parties who is seeking the decree for permanent injunction and the matter of title of such party in the land in suit is incidentally gone into.

The question of possession on the establishment whereof the suit could only be decreed, even though title of the land in suit may of the plaintiff, which though in instant case not. The trial Court on detailed discussions of the evidence brought on record from the side of the plaintiff and upon assigning reason for non-accepting the evidence of the witnesses examined by the plaintiff on the question of possession made the finding that plaintiff failed to prove her possession in the land in suit. Md. Abu Alam vs. Zarina Begum and others (Md.Ruhul Amin J) (Civil) 4ADC 257

The Evidence Act, (I of 1872), Section 114.

The High Court Division without adverting to the reasonings given by the trial Court for believing or disbelieving evidence of plaintiffs witness and defendant's witness reversed the findings of the trial court and did not at all discuss the evidence adduced by the parties. We have already pointed out that the High Court Division was in error in observing in omnibus manner that the trial Court was not aware of the legal position as to whom lay the onus of proof in case of benami transaction. We have also indicated earlier that the trial court thoroughly discussed all aspects of benami transaction and arrived at its findings. The sweeping remark by the High Court Division regarding judgment of the trial court is really unfortunate. Nurul Haque etc. & ors. i's Aix/us Salarn Chowdhurv etc. & ors. (M. M. Ruliul Antin J)(Civil) 4ADC 573

The Evidence Act (I of 1872 ), Section 73.

The Land Adminstration Board competent to pass the order challenged in the suit. Resorting to the unsatisfactory and dangerous' mode of comparison of the contentious signature or writing with the admitted writing or signature and thereby arriving at the 'national view' seems to be'. 'Appears to be'. May be assumed to' or 'perceiving' or guessing probability' of being similar to the admitted writing or signature without the aid in evidence of microscopic enlargement and any expert advice and then stacking judgment thereon is not only risky but unsafe too and consequent thereupon there is serious chance of error in the final decision.Tarak Ghandra Majhi vs Atahar Ali Howlader (Md. Ruhul Amin. J) (Civil) I ADC 481

High Court Division is quite competent to make direction to the person performing functions in connection with the affairs of the Republic or of a local authority to refrain from doing thing not permitted by law or to do something required by law to do and that for the purpose of effective compliance of the direction so given the High Court division is quite within its jurisdiction to make further direction to see that its direction is being executed or to make its Direction effective. M/s Micro Electronic Limited vs M/s Rahimnafroz Batteries Limited (Md. Ruhul Amin J)(Civil) I ADC 485

The Evidence Act, Section 91

In a suit for permanent injunction the primary question for determination is the possession of the parties who is seeking the decree for permanent injunction and the matter of title of such party in the land in suit is incidentally gone into.

The question of possession on the establishment whereof the suit could only be decreed, even though title of the land in suit may of the plaintiff, which though in instant case not. The trial Court on detailed discussions of the evidence brought on record from the side of the plaintiff and upon assigning reason for non-accepting the evidence of the witnesses examined by the plaintiff on the question of possession made the finding that plaintiff failed to prove her possession in the land in suit. Md. Abu Alam vs. Zarina Begum and others (Md.Ruhul Amin J) (Civil) 4 ADC 257 The Evidence Act (I of 1872) Section 13, 41, 43. The law is now settled that a judgment whether inter parties or not may be conclusive evidence against all persons of its existence date and legal effect, as distinguished from the accuracy of the decision rendered. Alauddin Mia and another Vs. Abdul Latif 9 DLR. 357. Malik Din and another Vs. Mohmmmad Aslam 21. DLR. 95.41 DLR (Ad) 1997. Robert Pinaru vs Moulana Hahibur Rahman (Md. Ruhul Amin, J) (Civil) 1 ADC 421

Section 91, 92

When the terms of a contract or of a grant, or of other disposition of property, have been reduced to the form of a document no evidence shall be given in proof of the terms except the document itself, or its secondary evidence where permissible. Md. Mosharraf Hossain vs Daulat Ahmed (Md Ruhul Amin, J) (Civil) I ADC 445

The Evidence Act Section 114 (g)

The officer who was directly in charge of the godown, was at first found guilty of misappropriation and was accordingly punished, but the departmental review board exonerated him ignoring the said officer's admission that he forged the signature of the respondent in the indent and that the evidence of the PWs that the signature in the indent was that of the respondent should not had been treated as legal evidence for not examining the disputed signature by a hand writing expert. The learned trial judge obviously had in his mind section 114(g) of the Evidence Act while considering this issue. Dhaka Water Supply & Sewerage Authority and others vs. Matiar Rahman (Mohammad Gholam Rabbani J) (Civil) 4ADC 278

The Evidence Act, Section 45

Seeking for a decree of specific performance of contract for sale of the land Md. Abul Hossain and others vs. Abdul Hamid Mandal and others (Mohammad Fazlul Karim J)(Civil) 4ADC 834 Seeking declaration of title in respect of the land of first schedule and for recovery of khas possession in respect of the land of second schedule upon evicting first group of defendants and for declaring that the kabala described in the 4th schedule is fraudulent, fabricated, illegal and void and not binding on the plaintiffs. Md. Nazrul Islam and others vs. Monowara Begum and others (Md. Ruhul Amin J) (Civil) 4 ADC 838

Sectionll, 101, 111, 114(e)

That late Fatema Khatun hersef filed the present suit and appeared in the court premises with her major son the appellant and signed the so enama, held that she cannot be presumed to be Paradanshin lady and accordingly the contents of the solenama was not required to be expalined to her in terms of Section 111 of the Evidence Act. Md. Shah Alam vs Md. Islam (Md. Tafazzul Islam, J) (Civil) I ADC 294

The Evidence Act, Section 114(g)

Declaration of title to the suit land on the averments

Since the plaintiffs are found in possession of the suit land there is no bar to allow the prayer for declaration regarding joint possession of the plaintiff with defendants No.7-10 along with declaration of their title; if the prayer of the plaintiffs for amendment of the plaint is not allowed they will be deprived of their legitimate right of enjoyment of their valuable properties; it is settled principle of law that amendment of the pleading can be allowed at any stage of the proceeding provided that the amendment, if allowed, would not change the nature and character of the suit and that amendment is necessary to effectively decide the real controversies between the parties in the suit. Hemayet Ali Shaikh and others vs. Ramesh Chandra Mondal (Md. Tafazzul Islam J) (Civil) 4 ADC 866

Section 73

The court to compare and scrutinize the disputed signatures with the admitted signatures under provision of section 73 of the Evidence Act but the appellate Court has fallen in an error in holding that such comparison of the disputed signatures by the court along with the admitted signatures is not always save. It was the duty of the defendant to get the same proved otherwise by obtainingan opinion of the hand writing expert. Anu Miah vs Gauranga Chandra Sharma (Sved J. R. Mudassir Husain. J) (Civil) 1 ADC 462

The Evidence Act, Sections 91,92,110

Seeking declaration of title and confirmation of possession in the suit land. Syed Ali Mondal vs. Dulal Chandra Biswas (Md. Tafazzul Islam J ) (Civil) 4 ADC 964

Whether Evidence is admissible given by pardangshin women

The question of special onus with regard to a transaction entered into with a par-danishin lady and the question of proof of an independent advice is indispensable in case of a transaction where the protection to a pardanishin woman is available came up for consideration. Mustafizur Rahman Vs Md. Amjad Hossain (Md. Ruhul Amin J)(Civil) 3 ADC 319

The Evidence Act (I of 1872), Section 28. Article 6, 7.

The claim of the respondents for mutation of their names has no legal basis and respondents are at first required to establish their right title and interest over the property in question in a competent court of law before praying for direction for mutation of their names and writ court is not the proper forum for deciding such question of title and accordingly the High Court Division acted beyond its jurisdiction in making the Rule absolute. Rupali Bank Ltd. & Govt etc. vs Shawkat Ara Salauddin (Md. Tafazzul Islam J) (Civil) 2ADC J

Evidence Act, Section 102

The onus being on the respondent to show that the property in question is not an abandoned property and the Court of Settlement having come to a definite finding that the respondent failed to discharge that onus, the High Court Division erred in law in holding that the Court of Settlement did not come to any decision as to the abandoned character of the property and further erred in law. Govt. BUDPR , Dhaka vs Mst. Shiuli Begum (Mahmudul Amin Choudhury C J)(Civil) 2 ADC 27

The Evidence Act, Section 73

It is well-settled that when both the parties have led evidence question of onus is out of place and matter is to be decided on the evidence led by the parties. Herein both the lower appellate court as well as the High Court Division considered the evidence on record adduced by both the parties and came to a concurrent finding that the defendant-appellant was a monthly tenant under the plaintiffs-respondents and that the tenancy stood determined by forfeiture. Muhammad Ishaque vs Ekramul Hauqe Chowdhury (Mohammad Gholam Rabbani J) (Civil) 2 ADC 50

The Evidence Act, (I of 1872) Section 92

Sree Hari Sankar Nandi Majumder vs Sree Promode Chandra Roy Choudhury and 47 DLR (AD) 97 between Sadharan Bima Corporations Vs. Sanjib Kumar Das . The word action or suit appearing in clause 8(b) should not be interpreted as having identical meaning and the word action would include legal notice served by the insured on the insurer. Chalna Marine Products vs Bangladesh General Insurance Co. Ltd (Mainur Reza Chowdhury J) (Civil) 2 ADC 96

Section 155(3)

The provision of section 38 of the Companies Act gives the Court a wide discretion to scrutinize any fraud, error or undue influence or misrepresentation in the matter of transfer of any share and grant relief commensuration with the appropriate possible relief contemplated under the said section. Ahmed Impex ( Private) Ltd & Ors vs Moqbul Ahmed ors. (Mohammad Fazlul Karim J)(Civil) 2 ADC 107

The Evidence Act (I of 1872) Section 114(g).

That the plaintiff submitted an application objecting to the appointment of one of the members of the enquiry committee on the grounds that the said member was Junior to him in service and had strained relationship with him, but the objection was not taken into consideration the office who was directly in charge of the godown, was at first found guilty of misappropriation and was accordingly punished, but the departi mental review board exonerated him ignoring the said officer's admission i that he forged the signature of the ! respondent in the indent and that evi-| dence of the PWS that the signature in j the indent was that of the respondent ! should not had been treated as legal evi-i dence for not examining the disputed | Signature by a hand writing expert. The I learned trial Judges obviously had in his ! mind section 114(g) of the Evidence Act j while considering this issue. DWS & \ Swearage Authority vs Matiar Rahman \ (Mohamad Gholam Rabbain J) (Civil) | 2ADC 231

The Evidence Act (I of 1872) Section 114(h).

The law is well settled that the extent of ! jurisdiction of the revisional Court is ! limited. The revisional Court is within ; its jurisdiction in reversing the judgment I of the lower Court if the same is the i result of misreading of the evidence or \ has been made leaving the legal evi-I dence out of consideration or that while i arriving at the decision misconstrued the I documentary evidence or left the vital I evidence out of consideration without i assigning any reason. If the judgment of ! the lower Court does not suffer from any ! one of the aforesaid defects the revision-j al court is not competent to disturb the ! finding and decision arrived at by the ! last Court of fact. Bangladesh the DC. \ Jessore vs Ershad Ali Mondal (Md. j Ruhul Amin J)(Civil) 2ADC 293

The Evidence Act, (I of 1872), Section 110.

The presumption under section 110 in this case would apply only if two conditions are satisfied viz that the possession of the person claiming long possession is not prima facie wrongful and secondly the title of the person, in this case the plaintiff respondent, against whom the long possession is claimed is not proved. The courts below found that the defendant appellants are in possession but they could not prove their title or that they are not in possession to the knowledge of the real owner upon denying his title or any kabuliyat or deed of settlement. Mati Gouri Das vs A.B.M. Hasan Kabir & Sreemati Ava Rani Aich (K. M. Hasan J) (Civil) 2ADC 449

Evictable tenant

The since the respondent is not a defaulter as found by S. C. C Judge and as per approved plan (Exhibit-2) by the Sylhet Municipality for construction of the first floor over the existing ground floor of the suit shop, it is not necessary to evict the respondent from the ground floor of the suit shop. But the learned S. C. C Judge without considering the above aspect of the case erroneously held that the plaintiff has been able to prove bonafide requirement and the learned Single Judge of the High Court Division after the consideration of the case of the parties, exhibits and deposition of both the parities rightly held that the appellant failed to make out a case of requirement. Nezma Khatun Chowdhury vs Abdul khaleque (Syed J. R. Mudassir Husain J)(Civil)3 ADC 143

The Excise and Salt Act 1944, Section 3(4) (5)(6).

Delegation of Rule making Power and its guide line Articles 65(1) and 83 of the constitution. Bangladesh vs M/s Eastern Beverage industries Ltd & another (6) (Civil) I ADC 112

Citation: I ADC 573

Subject: Evidence

Delivery Date: 2018-11-20

The Evidence Act (lof 1872) Section 114

The High Court Division without adverting to the reasonings given by the trial Court for believing or disbelieving evidence of plaintiff's witness and defendant's witness reversed the findings of the trial court and did not at all discuss the evidence adduced by the parties. We have already pointed out that the High Court Division was in error in observing in omnibus manner that the trial Court was not aware of the legal position as to whom lay the onus of proof in case of benami transaction. We have also indicated earlier that the trial court thoroughly discussed all aspects of benami transaction and arrived at its findings. The sweeping remark by the High Court Division regarding judgment of the trial court is really unfortnuate. Nurul Haque ors. (MM. Ruhul Amin J) (Civil) I ADC 573

Citation: 3ADC 498

Subject: Explosive Substance

Delivery Date: 2018-12-03

The Explosive Substance Act Section 4, 6.

It appears that the prosecution opposed prayer for bail and as such we are of the view that the High Court Division ought to have exercised the jurisdiction after being satisfied that there are reasonable grounds for believing that the accused respondent is not guilty of the offence. The State vs Muhibur Rahman Manik (Amirul Kabir Chowdhury J)(Criminal) 3ADC 498

Citation: 4ADC 349

Subject: Foreign Exchange

Delivery Date: 2018-12-03

Foreign Exchange Regulations Act, 1947, Section 3(1)

Section 561A of the Code of Criminal Procedure for quashing the proceeding of Patenga PS. Case No.9 (5) 2002 under Sections 16/32 of the Customs Act and under Section 3 (1) foreign Exchange Regulations Act, 1947 and 25(B) of the Special Powers Act, 1974 filed against him and he obtained Rule in the aforesaid Miscellaneous Case. Violating Rules 6 of the "Passenger (Non Tourists)" Baggage (Import) Rules, 2000. The State, represented by the Deputy Commissioner, Chittagong vs. Md. Manzurul Alam (Syed J.R. Mudassir Husain CJ) (Criminal) 4ADC 349

THE FOREST ACT, 1927

(ACT NO. XVI OF 1927)

[21st September, 1927]

1 An Act to consolidate the law relating to forests, the transit of forest-produce and the duty leviable on timber and other forest-produce.

WHEREAS it is expedient to consolidate the law relating to forests, the transit of forest-produce and the duty leviable on timber and other forest-produce; It is hereby enacted as follows:-

CHAPTER I

PRELIMINARY

Short title and extent

1. (1) This Act may be called the Forest Act, 1927.

2[ (2) It extends to the whole of Bangladesh.]

(3) [Omitted by the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973), section 3 and 2nd Schedule.]

Interpretation clause

2. In this Act, unless there is anything repugnant in the subject or context,-

(1) "cattle" includes elephants, camels, buffaloes, horses, mares, geldings, ponies, colts, fillies, mules, asses, pigs, rams, ewes, sheep, lambs, goats and kids;

(2) "Forest-officer" means any person whom the Government or any officer empowered by the Government in this behalf, may appoint to carry out all or any of the purposes of this Act or to do anything required by this Act or any rule made thereunder to be done by a Forest-officer;

(3) "forest-offence" means an offence punishable under this Act or under any rule made thereunder;

(4) "forest-produce" includes-

(a) the following whether found in, or brought from, a forest or not, that is to say:-

timber, charcoal, cuatchouc, catechu, wood-oil, resin, natural varnish, bark, lac, mahua flowers, mahua seeds, kuth and myrabolams, and

(b) the following when found in or brought from, a forest, that is to say:-

(i) trees and leaves, flowers and fruits, and all other parts or produce not hereinbefore mentioned, of trees,

(ii) Plants not being trees (including grass, creepers, reeds and moss), and all parts or produce of such plants,

(iii) wild animals and skins, tusks, horns, bones, silk, cocoons, honey, and wax, and al other parts of produce of animals, and

(iv) peat, surface, soil, rock and minerals (including limestone, laterite, mineral oils and all products of mines or quarries);

3[ (4A) "owner" includes a Court of Wards in respect of property under the superintendence or charge of such court;]

(5) "river" includes any stream, canal, creek or other channels, natural or artificial;

(6) "timber" includes trees when they have fallen or have been felled, and all wood whether cut up or fashioned or hollowed out for any purpose or not; and

(7) "tree" includes palms, bamboos, stumps, brushwood and canes.

CHAPTER II

OF RESERVED FORESTS

Power to reserve forests

3. The Government may constitute any forest-land or waste-land 4[ or any land suitable for afforestation] which is the property of Government, or over which the Government has proprietary rights, or to the whole or any part of the forest-produce of which the Government is entitled, a reserved forest in the manner hereinafter provided.

Notification by Government

4. (1) Whenever it has been decided to constitute any land reserved forest, the Government shall issue a notification in the official Gazette-

(a) declaring that it has been decided to constitute such land a reserved forest;

(b) specifying, as nearly as possible, the situation and limits of such land; and

(c) appointing an officer (hereinafter called "the Forest Settlement-officer") to inquire into and determine the existence, nature and extent of any rights alleged to exist in favour of any person in or very any land comprised within such limits, or in or over any forest-produce, and to deal with the same as provided in this Chapter.

Explanation.-For the purposes of Clause (b), it shall be sufficient to describe the limits of the forest by roads, rivers, ridges or other well-known or readily intelligible boundaries.

(2) The officer appointed under clause (c) of sub-section (1) shall ordinarily be a person not holding any forest-office except that of Forest Settlement-officer.

(3) Nothing in this section shall prevent the Government from appointing any number of officers not exceeding three, not more than one of whom shall be a person holding any forest-office except as aforesaid, to perform the duties of a Forest Settlement-officer under this Act.

Bar of accrual of forest rights

5. After the issue of a notification under section 4, no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or contract in writing made or entered into by or on behalf of the Government or some person in whom such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the Government in this behalf.

Proclamation by Forest Settlement officer

6. When a notification has been issued under section 4, the Forest Settlement-officer shall publish in 5[ Bengali] in every town and village in the neighbourhood of the land comprised therein, a proclamation-

(a) Specifying, as nearly as possible, the situation and limits of the proposed forest;

(b) explaining the consequences which, as hereinafter provided, will ensue on the reservation of such forest; and

(c) fixing a period of not less than three months 6[ and not more than four months] from the date of such proclamation, and requiring every person claiming any right mentioned in section 4 or section 5 within such period either to present to the Forest Settlement-officer a written notice specifying or to appear before him and state, the nature of such right and the amount particulars of the compensation (if any) claimed in respect thereof.

Inquiry by Forest Settlement officer

7. The forest settlement-officer shall take down in writing all statements made under section 6, and shall at some convenient place inquire into all claims duly preferred under that section, and the existence of any rights mentioned in section 4 or section 5 and not claimed under section 6 so far as the same may be as certainable from the records of Government and the evidence of any persons likely to be acquainted with the same.

Powers of Forest Settlement-officer

8. For the purpose of such inquiry, the Forest Settlement officer may exercise the following powers, that is to say:-

(a) power to enter, by himself or any officer authorized by him for the purpose, upon any land, and to survey, demarcate and make a map of the same; and

(b) the powers of a Civil Court in the trail of suit.

Extinction of rights

9. Rights in respect of which no claim has been preferred under section 6, and of the existence of which no knowledge has been acquired by inquiry under section 7, shall be extinguished, unless, before the notification under section 20 is published, the person claiming them satisfies the Forest Settlement-officer that he had sufficient cause for not preferring such claim within the period fixed under section 6.

Treatment of claims relating to practice of shifting cultivation

10. (1) In the case of a claim relating to the practice of shifting cultivation, the Forest Settlement-officer shall record a statement setting forth the particulars of the claim and of any local rule or order under which the practice is allowed or regulated, and submit the statement to the Government, together with his opinion as to whether the practice would be permitted or prohibited wholly or in part.

(2) On receipt of the statement and opinion, the Government may make and order permitting or prohibiting the practice wholly or in part.

(3) If such practice is permitted wholly or in part, the Forest Settlement-officer may arrange for its exercise-

(a) by altering the limits of the land under settlement so as to exclude land of sufficient extent, of a suitable kind, and in a locality reasonably convenient for the purposes of the claimants, or

(b) by causing certain portions of the land under settlement to be separately demarcated, and giving permission to the claimants to practice shifting cultivation therein under such conditions as he may prescribe.

(4) All arrangements made under sub-section (3) shall be subject to the previous sanction of the Government.

(5) The practice of shifting cultivation shall in all cases be deemed a privilege subject to control, restriction and abolition by the Government.

Power to acquire land over which right is claimed

11. (1) In the case of a claim to a right in or over any land other than a right-of-way or right of pasture, or a right to forest-produce or a water-course, the Forest Settlement-officer shall pass an order admitting or rejecting the same in whole or in part.

(2) If such claim is admitted in whole or in part, the Forest Settlement-officer shall either-

(i) exclude such land from the limits of the proposed forest; or

(ii) come to an agreement with the owner thereof for the surrender of his rights; or

(iii) proceed to acquire such land in the manner provided by the 7[ Acquisition and Requisition of Immovable Property Ordinance, 1982 (II of 1982)].

(3) For the purpose of so acquiring such land?

(a) the Forest Settlement-officer shall be deemed to be a Collector proceeding under the 8[ Acquisition and Requisition of Immovable Property Ordinance, 1982 (II of 1982)].

(b) the claimant shall be deemed to be a person interested and appearing before him in pursuance of a notice given under section 9 of that Act;

(c) the provisions of the preceding sections of that Act shall be deemed to have been complied with; and

(d) the Collector, with the consent of the claimant, or the Court, with the consent of both parties, may award compensation in land, or partly in land and partly in money 9[ , or wholly in money].

Order on claims to rights of pasture or to forest-produce

12. In the case of a claim to rights of a pasture or to forest-produce, the Forest Settlement-officer shall pass an order admitting or rejecting the same in whole or in part.

Record to be made by Forest Settlement-officer

13. The Forest Settlement-officer, when passing any order under section 12, shall record, so far as may be practicable,-

(a) the name, father's name, caste, residence and occupation of the person claiming the right; and

(b) the designation, position and area of all fields or groups of fields (if any), and the designation and position of all buildings (if any) in respect of which the exercise of such rights is claimed.

Record where the admits claim

14. If the Forest Settlement-officer admits in whole or in part any claim under section 12, he shall also record the extent to which the claim is so admitted, specifying the number and description of the cattle which the claimant is from time to time entitled to graze in the forest, the season during which such pasture is permitted, the quantity of timber and other forest-produce which he is from time to time authorized to take or receive, and such other particulars as the case may require. He shall also record whether the timber or other forest-produce obtained by the exercise of the rights claimed may be sold or bartered.

Exercise of rights admitted

15. (1) After making such record the Forest Settlement-officer shall, to the best of his ability, and having due regard to the maintenance of the reserved forest in respect of which the claim is made, pass such orders as will ensure the continued exercise of the rights so admitted.

(2) For this purpose the Forest Settlement-officer may-

(a) set out some other forest-tract of sufficient extent, and in a locality reasonably convenient, for the purposes of such claimants, and record an order conferring upon them a right of pasture or to forest-produce (as the case may be) to the extent so admitted; or

(b) so alter the limits of the proposed forest as to exclude forest-land of sufficient extent, and in a locality reasonably convenient, for the purposes of the claimants; or

(c) record an order, continuing to such claimants a right of pasture or to forest-produce, as the case may be, to the extent so admitted, as such seasons, within such portions of the proposed forest, and under such rules, as may be made in this behalf by the Government.

Commutation of rights

16. In case the Forest Settlement-officer finds it impossible, having due regard to the maintenance of the reserved forest, to make such settlement under section 15 as shall ensure the continued exercise of the said rights to the extent so admitted, he shall, subject to such rules as the Government may make in this behalf, commute such rights, by the payment to such persons of a sum of money in lieu thereof, or by the grant of land, or in such other manner as he thinks fit.

Time limit for resolution of claims

10[ 16A. (1) Within 12 months after the period fixed under section 6 has elapsed, or within 12 months after the enactment of this section, whichever is later, the Forest Settlement Officer shall do one of the following:-

(i) dispose of all claims made under sections 6 and 9; or

(ii) obtain an extension of this 12 months deadline under sub-section (2).

(2) Upon application of a Forest Settlement Officer, the Deputy Commissioner may grant a single 2 months extension of the deadline in sub-section (1), making the deadline 14 months, and if that extended deadline threatens to be missed, the Commissioner may grant additional 4 months extensions.]

Appeal from order passed under section 11, section 12, section 15 or section 16

11[ 17. Any person who has made a claim under this Act, or any Forest-officer or other person generally or specially empowered by the Government in this behalf, may, within three months from the date of the order passed on such claim by the Forest Settlement-officer under section 11, section 12, section 15 or section 16, present an appeal from such order to the Divisional Commissioner concerned.

Appeal under section 17

18.(1) [Omitted by section 3 of the Forest (Amendment) Act, 2000 (Act No. X of 2000).]

12[ (2)(a) An appeal shall be heard by the Divisional Commissioner in the manner prescribed for the time being for the hearing of appeals in matters relating to land-development tax and the appeal shall be disposed of within 6 months from the date of presenting it under section 17.

(b) The Divisional Commissioner shall report to the Government the particulars of the cases which could not be disposed by him within the time prescribed in clause (a), where upon the Government may extend time as deemed necessary.]

(3) The order passed on the appeal by the Divisional Commissioner shall, subject only to revision by the Government, be final.]

Pleaders

19. The Government, or any person who has made a claim under this Act, may appoint any person to appear, plead and act

on its or his behalf before the Forest Settlement-officer, or 13[ the Divisional Commissioner], in the course of any inquiry or appeal under this Act.

Notification declaring forest reserved

20. (1) When the following events have occurred, namely:-

(a) the period fixed under section 6 for preferring claims has elapsed, and all claims, if any, made under that section or section 9 have been disposed of by the Forest Settlement-officer;

(b) if any such claims have been made, the period limited by section 17 for appealing from the orders passed on such claims has elapsed, and all appeals (if any) presented within such period have been disposed of by the 14[ Divisional Commissioner]; and

(c) all lands (if any) to be included in the proposed forest, which the Forest Settlement-officer has, under section 11, elected to acquire under the 15[ Acquisition and Requisition of Immovable Property Ordinance, 1982 (II of 1982), have become vested in the Government under section 11 of that Ordinance],

the Government shall publish a notification in the official Gazette, specifying definitely, according to boundary-marks erected or otherwise, the limits of the forest which is to be reserved, and declaring the same to be reserved from a date fixed by the notification.

(2) From the date so fixed such forest shall be deemed to be a reserved forest.

Publication of translation of such notification in neighbourhood of forest

21. The Forest-officer shall, before the date fixed by such notification, 16[ cause it] to be published in every town and village in the neighbourhood of the forest.

Power to revise arrangement made under section 15 or section 18

22. The Government may, within five years from the publication of any notification under section 20, revise any arrangement made under section 15 or section 18, and may for this purpose rescind or modify any order made under section 15 or section 18, and direct that any one of the proceedings specified in section 15 be taken in lieu of any other of such proceedings, or that the rights admitted under section 12 be commuted under section 16.

No right acquired over reserved forest, except as here provided

23. No right of any description shall be acquired in or over a reserved forest except by succession or under a grant or contract in writing made by or on behalf of the Government or some person in whom such right was vested when the notification under section 20 was issued.

Rights not to be alienated without sanction

24. (1) Notwithstanding anything contained in section 23, no right continued under clause (c) of sub-section (2) of section 15 shall be alienated by way of grant, sale, lease, mortgage or otherwise, without the sanction of the Government:

Provided that, when any such right is appendant to any land or house, it may be sold or otherwise alienated with such land or house.

(2) No timber or other forest-produce obtained in exercise of any such right shall be sold or bartered except to such extent as may have been admitted in the order recorded under section 14.

Power to stop ways and water-courses in reserved forests

25. The Forest-officer may, with the previous sanction of the Government or of any officer duly authorized by it in this behalf, stop any public or private way or water-course in a reserved forest, provided that a substitute for the way or water-course so stopped, which the Government deems to be reasonably convenient, already exists, or has been provided or constructed by the Forest-officer in lieu thereof.

Acts prohibited in such forests

26. 17[ (1) Any person who, in a reserved forest-

(a) kindles, keeps or carries any fire except at such seasons as the Forest-Officer may notify in this behalf.

(b) trespasses or pastures cattle, or permits cattle to trespass;

(c) causes any damage by negligence in felling any tree or cutting or dragging any timber;

(d) quarries stone, burns lime or charcoal, or collects, subjects to any manufacturing process, or removes, any forest produce other than timber;

or who enters a reserved forest with fire arms without prior permission from the Divisional Forest Officer concerned, shall be punishable with imprisonment for a term which may extend to six months and shall also be liable to fine which may extend to two thousand Taka, in addition to such compensation for damage done to the forest as the convicting Court may direct to be paid.

(1A) Any person who-

(a) makes any fresh clearing prohibited by section 5; or

(b) removes any timber from a reserved forest; or

(c) sets fire to a reserved forest, or, in contravention of any rules made by the Government in this behalf, kindles any fire, or leaves any fire burning, in such manner as to endanger such a forest;

or who, in a reserved forest

(d) fells, girdles, lops, taps or burns any tree or strips off the bark or leaves from or otherwise damages, the same;

(e) clears or breaks up any land for cultivation or any other purpose 18[ or cultivates or attempts to cultivate any land in any other manner];

(f) in contravention of any rules made in this behalf by the Government, hunts, shoots, fishes, poisons water or sets traps or snares; or

(g) establishes saw-pits or saw-benches or converts trees into timber without lawful authority,

shall be punishable with imprisonment for a term which may extend to five years and shall not be less than six months, and shall also be liable to fine which may extend to fifty thousand Taka and shall not be less than five thousand Taka, in addition to such compensation for damage done to the forest as the convicting Court may direct to be paid.]

(2) Nothing in this section shall be deemed to prohibit?

(a) any act done by permission in writing of the Forest-officer, or under any rule made by the Government; or

(b) the exercise of any right continued under clause (c) of sub-section (2) of section 15, or created by grant or contract in writing made by or on behalf of the Government under section 23.

(3) Whenever fire is caused wilfully or by gross negligence in a reserved forest, the Government may (notwithstanding that any penalty has been inflicted under this section) direct that in such forest or any portion thereof the exercise of all rights of pasture or to forest-produce shall be suspended for such period as it thinks fit.

Power to declare forest no longer reserved

27. (1) The Government may, by notification in the official Gazette, direct that, from a date fixed by such notification, any forest or any portion thereof reserved under this Act shall cease to be a reserved forest.

(2) From the date so fixed, such forest or portion shall cease to be reserved; but the rights (if any) which have been extinguished therein shall not revive in consequence of such cessation.

CHAPTER III

19 OF VILLAGE-FORESTS AND SOCIAL FORESTRY

Formation of village forests

28. (1) The Government may assign to any village community the rights of Government to or over any land which has been constituted a reserved forest, and may cancel such assignment. All forests so assigned shall be called village forests.

(2) The Government may make rules for regulating the management of village-forests, prescribing the conditions under which the community to which any such assignment is made may be provided with timber or other forest-produce or pasture, and their duties for the protection and improvement of such forest.

(3) All the provisions of this Act relating to reserved forests shall (so far as they are not inconsistent with the rules so made) apply to village-forests.

Social Forestry

20[ 28A. (1) On any land which is the property of the Government or over which the Government has proprietory rights, and on any other land assigned to the Government by voluntary written agreement of the owner for the purpose of afforestation, conservation or management through social forestry, the Government may establish a social forestry programme under sub-section (2).

(2) A social Forestry programme is established when the Government by one or more written agreements assigns rights to forest-produce or rights to use the land, for the purposes of social forestry, to person assisting the Government in management of the land.

(3) Notwithstanding any other provision of law, agreements under sub-section (2) concerning Government-owned lands need not be registered in the local records of right to lands, and no party to such an unregistered agreement

may be divested of rights solely by execution of a subsequent assignment of rights by the Government to another person.

(4) The Government may make rules to set out standards for social forestry agreements and programme, and such standards shall at a minimum-

(i) require agreements to include or make reference to an agreed-upon management plant for the social forestry programme;

(ii) guarantee participants an equitable share of proceeds in return for labour invested;

(iii) in the case of agreements contemplating timber harvest, require the duration of agreements to include the expected principal harvest;

(iv) allow transfer of benefits and obligations under agreements between spouses, and, when a participant dies, under the laws of succession to his heir, and govern other transfers;

(v) allow creation and dissolution of management committees representing participants in particular programmes, and empower the management committees to impose fine on participants for violation of agreement; and

(vi) allow persons to petition the Government for 'undertaking' social forestry programme.

(5) The Government may make rules to set out other requirements or guarantees for agreements, including

(i) duties of participants to assist forest officers; and

(ii) any other matter concerning formation or operation of social forestry programmes.

(6) Rules made under this section may recognize different classes of social forestry programmes, and the Government may make different rules for different classes or programmes.

(7) The Government may publish guidelines and forms for social forestry agreements.

Effect of other of law on social forestry

28B. (1) For the purposes of section 26 and 34, the exercise of any right granted by a social forestry agreement under section 28A shall be considered to be done with permission in writing of the Forest-Officer.

(2) Section 80 shall not apply to private lands subject to a voluntary written agreement under section 28A, unless such agreement itself allows the Government to invoke all or part of section 80.

(3) Section 81 shall not apply to participants in social forestry projects under section 28A.]

CHAPTER IV

OF PROTECTED FORESTS

Protected forests

29. (1) The Government may, by notification in the official Gazette, declare the provisions of this Chapter applicable to any forest-land or waste-land which is not included in a reserved forest, but which is the property of Government, or over which the Government has proprietary rights, or to the whole or any part of the forest -produce of which the Government is entitled.

(2) The forest-land and waste-lands comprised in any such notification shall be called a "protected forest".

(3) No such notification shall be made unless the nature and extent of the rights of Government and of private persons in or over the forest-land or waste-land 21[ or charland] comprised therein have been inquired into and recorded at a survey or settlement, or in such other manner as the Government thinks sufficient. Every such record shall be presumed to be correct until the contrary is proved:

Provided that, if, in the case of any forest-land or waste-land, 22[ or charland] the Government thinks that such inquiry and record are necessary, but that they will occupy such length of time as in the meantime to endanger the rights of Government, the Government may, pending such inquiry and record, declare such land to be a protected forest, but so as not to abridge or affect any existing rights of individuals or communities.

Power to issue notification reserving trees, etc

30. The Government may, by notification in the official Gazette,-

(a) declare any trees or class of trees in a protected forest to be reserved from a date fixed by the notification;

(b) declare that any portion of such forest specified in the notification shall be closed for such term, not exceeding thirty years, as the Government thinks fit, and that the rights of private persons, if any, over such portion shall be suspended during such term, provided that the remainder of such forest be sufficient, and in locality reasonably convenient, for the due exercise of the rights suspended in the portion so closed; or

(c) prohibit, from a date fixed as aforesaid, the quarrying of stone, or the burning of lime or charcoal, or the collection or subjection to any manufacturing process, or removal of, any forest-produce in any such forest, and the 23[ breaking up, clearing or use] for cultivation, for building, for herding cattle or for any other purpose, of any land in any such forest.

Publication of translation of such notification in neighbourhood

31. The Collector shall cause a translation into 24[ Bengali] of every notification issued under section 30 to be affixed in a conspicuous place in every town and village in the neighbourhood of the forest comprised in the notification.

Power to make rules for protected forests

32. The Government may make rules to regulate the following matters, namely:-

(a) the cutting, sawing, conversion and removal of trees and timber, and the collection, manufacture and removal of forest-produce, from protected forests;

(b) the grating of licences to the inhabitants of towns and villages in the vicinity of protected forests to take trees, timber or other forest-produce for their own use, and the production and return of such licences by such persons;

(c) the granting of licences to persons felling or removing trees or timber or other forest-produce from such forests for the purposes of trade, and the production and return of such licences by such persons;

(d) the payments, if any, to be made by the persons mentioned in clauses (b) and (c) for permission to cut such trees, or to collect and remove such timber or other forest-produce;

(e) the other payments, if any, to be made by them in respect of such trees, timber and produce, and the places where such payment shall be made;

(f) the examination of forest-produce passing out of such forests;

(g) the clearing and breaking up of land for cultivation or other purposes in such forests;

(h) the protection from fire of timber lying in such forests and of trees reserved under section 30;

(i) the cutting of grass and pasturing of cattle in such forests;

(j) hunting, shooting, fishing, poisoning water and setting traps or snares in such forests, 25[ * * *];

(k) the protection and management of any portion of a forest closed under section 30; and

(l) the exercise of rights referred to in section 29.

Penalties for acts in contravention of 26[ section 28A or of] notification under section 30 or of rules under section 32

33. 27[ (1) Any person who commits any of the following offences, namely:-

(a) contrary to any prohibition under section 30, quarries any stone, or burns any lime or charcoal,

or collects, subjects to any manufacturing process, or removes any forest produce other than timber;

(b) leaves burning any fire kindled by him in the vicinity of any protected forest;

(c) causes any damage by negligence in felling any tree or cutting or dragging any timber;

(d) trespasses or pastures cattle, or permits cattle to trespass;

(e) enters a protected forest with fire arms without prior permission from the Divisional Forest Officer concerned;

(f) infringes any rule made under section 32 28[ ;]

29[ (g) any offence or damage committed against social forestry programme will be deemed as an offense,]

shall be punishable with imprisonment for a term which may extend to six months and shall also be liable to fine which may extend to two thousand Taka, in addition such compensation for damage done to the forest as the convicting court may direct to be paid.

(1A) Any person who commits any of the following offences, namely:

(a) sets fire to a protected forest or, in contravention of any rules made by the Government in this behalf, kindles any fire, or leaves any fire burning, in such manner as to endanger such a forest;

(b) fells, girdles, lops, taps or burns any tree reserved under section 30, or strips off the bark or leaves from, or otherwise damages, any such tree;

(c) contrary to any prohibition under section 30, clears or breaks up any land for cultivation or other purpose 30[ or cultivates or attempts to cultivate any land in any other manner] in the protected forest;

(d) in contravention of any rules made in this behalf by the Government, hunts, shoots, sets traps or snares or catches or kills any wild animals and birds, fishes or poisons water;

(e) establishes saw-pits or saw-benches or converts tree into timber without lawful authority in a protected forest;

(f) removes any timber from a protected forest;

shall be punishable with imprisonment for a term which may extend to five years and shall not be less than six months and shall also be liable to fine which may extend to fifty thousand Taka and shall not be less than five thousand Taka, in addition such compensation for damages done to the forest as the convicting Court may direct to be paid.]

(2) Whenever fire is caused wilfully or by gross negligence in a protected forest, the Government may, not withstanding that any penalty has been inflicted under this section, direct that in such forest or any portion thereof the exercise of any right of pasture or to forest -produce shall be suspended for such period as it thinks fit.

Nothing in this Chapter to prohibit acts done in certain cases

34. Nothing in this Chapter shall be deemed to prohibit any act done with the permission in writing of the Forest-officer, or in accordance with rules made under section 32, or, except as regards any portion of a forest closed under section 30, or as regards any rights the exercise of which has been suspended under section 33, in the exercise of any right recorded under section 29.

CHAPTER V

OF THE CONTROL OVER FORESTS AND LANDS NOT BEING THE PROPERTY OF GOVERNMENT

31[ Repealed]

35. [Repealed by section 63 of the Private Forests Ordinance, 1959 (Ordinance No. XXXIV of 1959).]

32[ Repealed]

36. [Repealed by section 63 of the Private Forests Ordinance, 1959 (Ordinance No. XXXIV of 1959).]

33[ Repealed]

37. [Repealed by section 63 of the Private Forests Ordnance, 1959 (Ordinance No. XXXIV of 1959).]

34[ Repealed]

38. [Repealed by section 63 of the Private Forests Ordinance, 1959 (Ordinance No. XXXIV of 1959).]

Operation of the Privet Forest Ordinance

35[ 38A. (1) After commencement of this section, the Government may no longer exercise authority to vest control of forest land under sub-section (2) of section 6, section 7 or section 11 of the Private Forest Ordinance, 1959 (E. P. Ordi-nance No. XXXIV of 1959):

Provided that the forest land already vested shall remain vested.

(2) After commencement of this section, the Government may no longer exercise authority under section 3 of the Private Forests Ordinance, 1959 (E. P. Ordinance No. XXXIV of 1959) to require private forests to have working plans.

Notice of forest management activities

38B. (1) The Government may make rules for the purpose of issuing notice to owners or occupiers of neighbouring lands at least 30 days before understanding specified forest management activities that may pose a threat of harm to the environment or private or Government property or that the Government may wish to track for statistical purposes.

(2) Within 20 days after receiving notice of a proposed activity under this section, upon finding that the proposed activity is likely to cause unreasonable damage to the environment or private or Government property, the Government may issue a written order to the owner or occupier of a land to alter or to refrain from the proposed activity to prevent or minimize such damage.

Restricted activities

38C. (1) The Government may make rules to prohibit, restrict or require a permit for land clearing use of pesticides, harvest on steep stopes, or other forest management activities on private land that may pose a threat to property, renewable natural resources or the productivity of land.

(2) The Government shall empower Forest-officers to issue such permits required under sub-section (1).

Abetment of forest nuisances

38D. (1) Upon a finding that conditions on a land pose a risk of disease, insect outbreak fire or other harm to nearby renewable natural resources, the Government may issue a written order to the owner or occupier of the land to abate such a nuisance within 30 days, or sooner as may be specified in the notice, if the protection of renewable natural resources demands.

(2) To be effective, an order under sub-section (1) must be delivered personally to the owner or occupier of the land or sent to him by registered post with acknowledgement receipt due, or if the address of the person is unknown, affixed conspicuously at least two locations on the property.

(3) If the owner or the occupier fails to comply with an order under this section, the Government may enter the land, remove the nuisance and realize compensation as a public demand.]

CHAPTER VI

OF THE DUTY ON TIMBER AND OTHER FOREST-PRODUCE

Power to impose duty on timber and other forest produce

39. (1) The Government may levy a duty in such manner, at such places and at such rates as it may declare by notification in the official Gazette on all timber or other forest-produce-

(a) which is produced in Bangladesh, and in respect of which the Government has any right;

(b) which is brought from any place outside Bangladesh or is transported from or to any place within Bangladesh.

(2) In every case in which such duty is directed to be levid ad valorem, the Government may fix by like notification the value on which such duty shall be assessed.

Limit not apply to purchase money for royalty

40. Nothing in this Chapter shall be deemed to limit the amount, if any, chargeable as purchase-money or royalty on any timber or other forest-produce, although the same is levied on such timber or produce while in transit, in the same manner as duty is levied.

CHAPTER VII

OF THE CONTROL OF TIMBER AND OTHER FOREST-PRODUCE IN TRANSIT

Power to make rules to regulate transit of forest-produce

41. (1) The control of all rivers and their banks as regards the floating of timber, as well as the control of all timber and other forest-produce in transit by land or water, is vested in the Government, and it may make rules to regulate the transit of all timber and other forest-produce.

(2) In particular and without prejudice to the generality of the foregoing power such rules may-

(a) prescribe the routes by which alone timber or other forest-produce may be imported, exported or moved into, from or within 36[ Bangladesh];

(b) prohibit the import or export or moving of such timber or other produce without a pass from an officer duly authorized to issue the same, or otherwise than in accordance with the conditions of such pass;

(c) provide for the issue, production and return of such passes and for the payment of fees thereof;

(d) provide for the stoppage, reporting, examination and marking of timber or other forest-produce in transit, in respect of which there is reason to believe that any money is payable to the Government on account of the price thereof or on account of any duty, fee, royalty or charge due thereon, or, to which it is desirable for the purposes of this Act to affix a mark;

(e) provide for the establishment and regulation of depots to which such timber or other produce shall be taken by those in charge of it for examination, or for the payment of such money, or in order that such marks may be affixed to it; and the conditions under which such timber or other produce shall be brought to, stored at and removed from such depots;

(f) prohibit the closing up or obstructing of the channel or banks of any river used for the transit of timber or other forest-produce, and the throwing of grass, brushwood, branches or leaves into any such river or any act which may cause such river to be closed or obstructed;

(g) provide for the prevention or removal of any obstruction of the channel or banks of any such river, and for recovering the cost of such prevention or removal from the person whose acts or negligence necessitated the same;

(h) prohibit absolutely or subject to conditions, within specified local limits, the 37[ establishment of wood based industries including saw-mils, saw-pits, furniture marts and brick-fields], the converting, cutting, burning, concealing or making of timber, the altering or effacing of any marks on the same, or the possession or carrying of marking hammers or other implements used for marking timber;

(i) regulate the use of property marks for timber, and the registration of such marks; prescribe the time for which such registration shall hold good; limit the number of such marks that may be registered by any one person, and provide for the levy of fees for such registration.

(3) The Government may direct that any rule made under this section shall not apply to any specified class of timber or other forest-produce or to any specified local area.

38[ Omitted ]

41A. [Omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973).]

Penalty for breach of rules made under section 41

42. (1) The Government may be such rules prescribe as penalties for the contravention thereof imprisonment for a term which may extend to 39[ three years and shall not be less than two months and shall also be laible to fine which may extend to ten thousand Taka and shall not be less than two thousand Taka].

(2) Such rules may provide there penalties which are double of those mentioned in sub-section (1) may be inflicted in cases where the offence is committed after sunset and before sunrise, or after preparation for resistance to lawful authority, or where the offender has been previously convicted of a like offence.

Government and Forest-officers not liable for damage to forest-produce at depot

43. The Government shall not be responsible for any loss or damage which may occur in respect of any timber or other forest-produce while at a depot established under a rule made under section 41, or while detained elsewhere, for the purposes of this Act; and no Forest-officer shall be responsible for any such loss or damage, unless he causes such loss or damage negligently, maliciously or fraudulently.

All persons bound to aid in case of accident at depot

44. In case of any accident or emergency involving danger to any property at any such depot, every person employed at such depot, whether by the Government or by any private person, shall render any assistance to any Forest-officer or Police-officer demanding his aid in averting such danger or securing such property from damage or loss.

CHAPTER VIII

OF THE COLLECTION OF DRIFT AND STRANDED TIMBER

Certain kinds of timber to be deemed property of Government until title thereto proved, and may be collected accordingly

45. (1) All timber found adrift, beached, stranded or sunk;

all wood or timber bearing marks which have not been registered in accordance with the rules made under section 41, or on which the marks have been obliterated, altered or defaced by fire or otherwise; and

in such areas as the Government directs, all unmarked wood and timber;

shall be deemed to be the property of Government, unless and until any person establishes his right and title thereto, as provided in this Chapter.

(2) Such timber may be collected by any Forest-officer or other person entitled to collect the same by virtue of any rule made under section 51, and may be brought to any depot which the Forest-officer may notify as a depot for the reception of drift timber.

(3) The Government may, by notification in the official Gazette exempt any class of timber from the provisions of this section.

Notice to claimants of drift timber

46. Public notice shall from time to time be given by the Forest-office of timber collected under section 45. Such notice shall contain a description of the timber, and shall require any person claiming the same to present to such officer, within a period not less than two months from the date of such notice, a written statement of such claim.

Procedure on claim preferred to such timber

47. (1) When any such statement is presented as aforesaid, the Forest-officer may, after making such inquiry as he thinks fit, either reject the claim after recording his reasons for so doing, or deliver the timber to the claimant.

(2) If such timber is claimed by more than one person, the Forest-officer may either deliver the same to any of such persons whom he deems entitled thereto, or may refer the claimants to the Civil Courts, and retain the timber pending the receipt of an order from any such Court for its disposal.

(3) Any person whose claim has been rejected under this section may, within three months from the date of such rejection, institute a suit to recover possession of the timber claimed by him; but no person shall recover any compensation or costs against the Government, or against any Forest-officer on account of such rejection, or the detention or removal of any timber, or the delivery thereof to any other person under this section.

(4) No such timber shall be subject to process of any Civil, Criminal or Revenue Court until it has been delivered, or a suit has been brought, as provided in this section.

Disposal of unclaimed timber

48. If no such statement is presented as aforesaid, or if the claimant omits to prefer his claim in the manner and within the period fixed by the notice issued under section 46, or on such claim, having been so preferred by him and having been rejected, omits to institute a suit to recover possession of such timber within the further period fixed by section 47,the ownership of such timber shall vest in the Government, or, when such timber has been delivered to another person under section 47, in such other person free from all encumbrances not created by him.

Government and its officers not liable for damage to such timber

49. The Government shall not be responsible for any loss or damage which may occur in respect of any timber collected under section 45, and no Forest-officer shall be responsible for any such loss or damage, unless he causes such loss or damage negligently, maliciously or fraudulently.

Payments to be made by claimant before timber is delivered to- him

50. No person shall be entitled to recover possession of any timber collected or delivered as aforesaid until he has paid to the Forest-officer or other person entitled to receive it such sum on account thereof as may be due under any rule made under section 51.

Power to make rule and prescribe penalties

51. (1) The Government may make rules to regulate the following matter, namely:-

(a) the salving, collection and disposal of all timber mentioned in section 45;

(b) the use and registration of boats used in salving and collecting timber;

(c) the amounts to be paid for salving, collecting, moving, storing or disposing of such timber; and

(d) the use and registration of hammers and other instruments to be used for marking such timber.

(2) The Government may prescribe, as penalties for the contravention of any rules made under this section, imprisonment for a term which may extend to 40[ three years and shall not be less than two months and shall also be laible to fine which may extend to ten thousand Taka and shall not be less than two thousand Taka].

CHAPTER IX

PENALTIES AND PROCEDURE

Seizure of property liable to confiscation

52. (1) When there is reason to believe that a forest-offence has been committed in respect of any forest-produce, such produce, together with all tools, 41[ vessels], vehicles or cattle used in committing any such offence, may be seized by any Forest-officer or Police-officer 42[ or any other officer authorized in this behalf by or under any other law inforce].

43[ (1a) Every officer other than a Forest-officer seizing any property under this section shall hand over all the seized property mentioned under sub-section (1) along with the accused to the nearest forest-office for further legal proceedings:

Provided that police-officers need not hand over the accused to the nearest forest-office but shall inform such forest-office of the arrest.]

(2) Every officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized, and shall, as soon as may be, make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made:

Provided that, when the forest-produce with respect to which such offence is believed to have been committed is the property of Government, and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior.

Power to release property seized under section 52

53. Any Forest-officer of a rank not inferior to that of a Ranger who, or whose subordinate, has seized any tools, 44[ vessels], vehicles or cattle under section 52, may release the same on the execution by the owner thereof of a bond for the production of the property so released, if and when so required, before the Magistrate having jurisdiction to try the offence on account of which the seizure has been made.

Procedure thereupon

54. Upon the receipt of any such report, the Magistrate shall, with all convenient dispatch, take such measures as may be necessary for the arrest and trial of the offender and the disposal of the property according to law.

Forest produce, tools, etc when liable to confiscation

55. (1) All timber or forest-produce which is not the property of Government and in respect of which a forest-offence has been committed, and all tools, boats, vehicles and used in committing any forest-offence, shall be liable to confiscation.

(2) Such confiscation may be in addition to any other punishment prescribed for such offence.

Disposal on conclusion of trial for forest-offence of produce in respect which it was committed

56. When the trial of any forest-offence is concluded, any forest-produce in respect of which such offence has been committed shall, if it is the property of Government or has been confiscated, be taken charge of by a Forest-officer, and, in any other case, may be disposed of in such manner as the Court may direct.

Procedure when offender not known, or cannot be found

57. When the offender is not known or cannot be found the Magistrate may, if he finds that an offence has been committed, order the property in respect of which the offence has been committed to be confiscated and taken charge of by the Forest-officer, or to be made over to the person whom the Magistrate deems to entitled to the same:-

Provided that no such order shall be made until the expiration of one month from the date of seizing such property, or with out hearing the person, if any, claiming any right thereto, and the evidence, if any, which he may produce in support of his claim.

Procedure as to perishable property seized under section 52

58. The Magistrate may, notwithstanding anything herein before contained, direct the sale of any property seized under section 52 and subject to speedy and natural decay, and may deal with the proceeds as he would have dealt with such property if it had not been sold.

Appeal from orders under section 55, section 56, or section 57

59. The officer who made the seizure under section 52, or any of his official superiors, or any person claiming to be interested in the property so seized, may, within one month from the date of any order passed under section 55, section 56 or section 57, appeal therefrom to the Court to which orders made by such Magistrate are ordinarily appealable, and the order passed on such appeal shall be final.

Property when to vest in Government

60. When an order for the confiscation of any property has been passed under section 55 or section 57, as the case may be, and the period limited by section 59 for an appeal from such order has elapsed, and no such appeal has been preferred, or when, on such an appeal being preferred, the Appellate Court confirms such order in respect of the whole or a portion of such property, such property or such portion thereof, as the case may be, shall vest in the Government free from all incumbrances.

Saving of power to release property seized

61. Nothing herein before contained shall be deemed to prevent any officer empowered in this behalf by the Government from directing at any time the immediate release of any property seized under section 52.

Punishment for wrongful seizure

62. Any Forest-officer or Police-officer who vexatiously and unnecessarily seizes any property on pretence of seizing property liable to confiscation under this Act shall be punishable with imprisonment for a term which may extend

to 45[ one year and shall not be less than one month and shall also be liable to fine which may extend to ten thousand Taka and shall not be less than two thousand Taka].

Penalty for counterfeiting or defacing marks on trees and timber and for altering boundary marks

63. Whoever, with intent to cause damage or injury to the public or to any person, or to cause wrongful gain as defined in the 46[ Penal Code] -

(a) knowingly counterfeits upon any timber or standing tree a mark used by Forest-officers to indicate that such timber or tree is the property of the Government or of some person, or that it may lawfully be

Citation: 8 ADC 95

Subject: General Clauses

Delivery Date: 2018-11-07

The General Clauses Act, 1897 Section 6

Prayed for a direction for fixing up their seniority, promotion, pay and status, time scale in accordance with the provisions of Rules, 1981 but the authority on a misconception of law fixed their seniority, promotion, pay and status as per Rules of 2000. Government of Bangladesh vs. Kamrun Nahar (S.K. Sinha J)(Civil) 8 ADC 95

Citation: 3ADC 100, 3ADC 108, 2ADC 574

Subject: Government of India

Delivery Date: 2018-11-24

The Government of India Act, 1953, Section 241(3).

Where the rule is not made under any legislative sanctions namely constitutional or statutory authority it is mere administrative instruction having no force of law but the same being the internal notes and others of the office memos for official purpose and should not be produced before the Court in support of the claim of the employees. Md. Abdur Rahman vs Govt, of Bangladesh

(Mohammad Fazlul Karim J)(Civil) 3ADC 100

If the plaintiffs were not in possession of the suit land there was no reason for preparation of S.A. and R.S. records in their names and there was also no reason for them to pay rent for the suit land by 17 dakhilas. Md. Motiruddin Mondal @ Matiar Rahman Mondal vs Full Mohammed Mollah (M.M. Ruhul Amin J) (Civil) 3ADC 108

Section 240 (3)

It was held that such Ad hoc committee was amenable to the writ jurisdiction of the High Court Division having come within the definition of local authority in the General Clauses Act, 1897, as amended by P.O. No. 147 of 1972 in as much as under the said amended provision "local authority" now includes amongst others any corporation, or other body or authority constituted or established by the Government under any law. Bangladesh Co-Operative Insurance Limited Vs Md. Abdul Khaleque Khan (Mohammad Abdur Rouf J)(Civil) 2ADC 574

Citation: 1ADC 331, 1ADC 409

Subject: Government Power Development

Delivery Date: 2018-11-24

The Government Power Development Board (Employees) Service Rules, 1982. Rule 138 (a), (c),

143 (4), 139 (1) (b). 41 DLR 138.

The authority is required to furnish the copies of the inquiry reports along with show cause notice. Md. Abdul Mazid & Monir Ahmed vs S.M E & B. M.R.S ( (Md. Fuzlul Haque. J)(Civil) 1ADC 331

Rule 143

The submission advanced by the learned Deputy Attorney-General that the said grounds of non-supply of copies of the inquiry was not taken before the High Court Division is of no consequence. Since this is a question of law and may be agitated at any stage of the proceedings. Md. Abdul Mazid, Md. Monir Ahmed vs The Secretary Ministry of Energy and Mineral Resoruces ((Md. Fazlul Haque)(Civil) 1ADC 409

Citation: 5ADC 422, 4ADC 224, 4ADC 227, 4ADC 228

Subject: Government Servants

Delivery Date: 2018-11-24

The Government Servants (Discipline and Appeal) Rules, 1985

The administrative Tribunal by its afore-said order set aside the order dismissing
the departmental appeal of the Respondent No.l and thereupon
restored the previous pay scale of the Respondent and That also passed order
for the payment of pension ,gratuity and other benefits (2) Government of
the People's vs. Md. Atiar Rahman Mollah (Md. Ruhul Amin J) (Civil) 5ADC 422

The Government Servants (Discipline and Appeal) Rules, 1985 Section 3(a) and 3(b)

That admittedly the judgment of the Administrative Tribunal was passed on 28.01.2003 and certified copy was delivered on 01.02.2003 and therefore the appellant was entitled to get period of three months plus four days to prefer the appeal and under Sub-section (2A) of Section 6 an appeal could be admitted if filed not later than six months, in case of sufficient cause explained for the delay.

The appeal appears to have been filed on 07.08.2003 i.e. it was delayed by
more than seven months. Normally an appeal is to be filed within three months
under Sub-section (2) of Section 6 of the Act. On showing sufficient cause for not
preferring the appeal within the afore-said period of three months, under the
provision of Sub-section (2A) of the Act, an appeal however could be admit-
ted if filed not later than six months from the date of order or decision com-
plained of. Bangladesh vs. Md. Abdur Razzak and others (Amirul Kabir
Chowdhury J) (Civil) 4ADC 224

Any error apparent on the face of the judgment sought to be reviewed passed by this Division nor the petition for review has been filed upon discovery of new fact. Kazi Muhammad Khokon vs Deputy Secretary (Registration) Ministry of Law (Md. Ruhul Amin J) (Civil) 4ADC 227

Suit for declaration of title and recovery of possession alleging that the defendant to be in possession on permission from the owner since 1336 B.S. and no paper, no rent receipt or any other tangible paper/document could be showing in support of their possession in the suit land on the count.

The defendant though claimed that they were on permissive possession in the suit land from Seroogi, the original owner of the suit land since 1936 but could not produce any material document or rent receipt to substantiate their claim of permissive possession of original owner Seroogi. The plaintiff filed the suit for declaration of title and recovery of possession and under the circumstances they could get a declaration of title against the defendant on the basis of their documents. The plaintiff having filed all the material documents showing the title to the suit land including the Khatian being an evidence of possession as well as collateral evidence of title, was entitled to recovery of possession from the defendant, who under the circumstances, go to show that was in permissive possession in the suit land as asserted by the plaintiff. Kazi Muhammad Khokon vs. Deputy Secretary (Registration) Ministry of Law (Md. Ruhul Amin J) (Civil) 4ADC 228

Citation: 2ADC 357

Subject: Guardians and Wards

Delivery Date: 2018-11-25

The Guardians and Wards Act, (VIII of 1890), Section 25.

The direction of the High Court Division that the minor sons on attaining the age of 16 years would be at liberty to live with their father and they would be allowed to go to their father forthwith is maintained. Dr. Md. Rashidul Islam vs Morsheda Parveen ( M. M. Ruhul Amin J) (Civil) 2ADC 2ADC 357

Citation: 3ADC 634

Subject: Import and Export

Delivery Date: 2018-11-25

The Import and Export (Control) Act, 1950 Section 3(1).

The order states that the appellant has not given any satisfactory explanation as to why there was a long gap between the time of submission of bills of entry in November, 1989 and the physical examination of the goods in February, 1990. Thus the revisional authority was also of the view that the appellant himself contributed to the customs authority's rejection of his prayer for chemical examination. Md. Morzul Haque vs. Bangladesh (Mustafa Kama! J)(Civil) 3ADC 634

Citation: 5ADC 123

Subject: Import Policy

Delivery Date: 2018-11-25

The Import Policy of 1997 to 2000, Section 20

To issue clearance permit in respect of 10 (ten) re-conditioned vehicles imported by him within a period of 10 (ten) days from the receipt of the judgment.

...... (1) Chief Controller, Import and

Export vs. Md. Faruk Ahmed (Mohammad Fazlul Karim J) (Civil) 5ADC 123

Citation: 4ADC 308, 4ADC 313

Subject: Import Policy

Delivery Date: 2018-11-25

The Import Policy Order 1997-2002, Article 18, Clause 21, Section 20

Directing the respondents to issue clearance permit in respect of 10 (ten) reconditioned vehicles imported by him within a period of 10 (ten) days from the receipt of the judgment. The High Court Division is not, as a matter of fact, to decide as to whether the import in question is of 5 years or more than that as have been found by the authority entrusted upon to determine the same nor could see how the discretion has been exercised by the authority invoking section 21 of the

Import Policy. Chief Controller, Import and Export and others vs. Md. Faruk Ahmed (Mohammad Fazlul Karim J) (Civil) 4ADC 308

Dispute between the parties being as to whether Alam Gazi and Karimuddin together took settlement of the suit land on 5.10.1874 and that the plaintiff having proved the same on production of their registered Kubulyat Exhibit-1 and the entry in the C.S. Khatian No. 30, the learned Judges of the High Court Division erred in law in holding that the others sons of Alam Gazi are entitled to the suit land in excess of what they have inherited from Alam Gazi. The learned Counsel further submitted that the learned Judges of the High Court Division failed to notice that C.S. Khatian No. 30 records larger share in favour of the successors of Karimuddin in comparison of these of Karamuddin which is on evidence of the fact that the settement obtained on. 5.10.1874 by Alam Gazi an his son Karimuddin in equal shares. The learned Counsel further submitted that the learned Judges of the High Court Division have committed an error of law in modifying the decree passed by the learned Subordinate Judge on a wrong reading of the entry of C.S. Khatian and the same is also "based on no evidence". The learned Counsel further submitted that the plea of the benami to the effect that Karimuddin was a name lender on behalf of Kutubuddin for obtaining the settlement of the suit land on 5.10.1874 has no evidence on record to stand and as such the judgment and decree passed by the High Court Division in modifying the one passed by the Subordinate Judge is liable to be set aside. Abdul Hakim being dead his heirs Abdul Gani and others vs. Rajob AH being dead his heirs YusufAli and others (Mohammad Fazlul Karim J)(Civil) 4ADC 313

Citation: 4ADC 493, 5ADC 822

Subject: Income Tax

Delivery Date: 2018-11-25

The Income Tax Ordinance 1984 (Ordinance XXXVI of 1984), Section 83(2), 83A(1), 93/84,173

The Appellate Tribunal may amend any order passed by it to correct any error apparent from the record either of its own motion or the matter being brought to its notice by any other Income Tax Authority.

From the aforesaid provision it is clear that Commissioner of Taxes is included as one of the income tax authorities and as such we are of the view that the matter has been brought to the notice of the Tribunal by an authorised authority and as such there is no error in this regard. Akbar Hussain, Proprietor vs. Taxes Appellate Tribunal (Amirul Kabir Chowdhury J) (Civil) 4ADC 493

The Income Tax Ordinance, 1984, 1994, Section 165,166

The Rule of Law is of paramount importance which requires the highest court to hold that the prosecution of the offence under Chapter XXI is permissible only after the proceedings under sections 83, 93 and 128 of the Income Tax Ordinance were exhausted. This contention of Mr. Hossain, as understood, merely reiterates his earlier contention in this case that the Income Tax Ordinance being a civil legislation and solely designed to fix civil liability to pay income tax, the prosecution of criminal offences under chapter XXI, particularly under sections 165 and 166 of the Ordinance should be allowed only after first reopening the previously closed assessment of the respondent (15)

Government of the People's Republic of Bangladesh vs. Iqbal Hasan Mahmood (Md. Joynul Abedin J) (Civil) 811

and he got British Passport in 1966 as a citizen of United Kingdom. At the same time he is also a citizen of Bangladesh holding dual citizenship. The petitioner came to Bangladesh on the 1st August, 2001 and went to Sylhet to see his ancestral house and to renovate it and to reside there at the end of his life, and to his utter surprise he came to learn that the property has been declared as enemy property, now vested and non-resident property and the Government has taken up the management of his ancestral property. Achyutananda Das vs. Government of Bangladesh (Mohammad Fazlul Karim J) (Civil) 818

Seeking declaration of title ....(1) From the plaintiffs side no material was brought on record to show that interest of Sabjan Nessa Bibi in the jote was extinguished in any manner either by auction purchase by the landlord or by settlement by the landlord as claimed by the plaintiffs to Abdul Majid and that the plaintiffs by reliable evidence also could not prove possession of the land in suit while the suit is for mere declaration of title. On the aforesaid findings the High Court Division discharged the

Rule...... (6) Mongol Sarder being dead

his heirs vs. Md. Azahar Ali Pk (Md. Rahul Amin J)(Civil) 5ADC 822

Citation: 3ADC 529

Subject: Indian Constitution.

Delivery Date: 2018-11-25

The Indian Constitution. Article 32, 226. Bangladesh, 43 D L R (Ad).

Any person aggrieved" occurring in Article 102 of the Constitution have to be read in the context of the entire Constitution, not is lately. Article 102 is an institutional vehicle for ventilating the rights and duties under the Constitution and not a mere procedural device. Dr. Mohiuddin Farooque vs Bangladesh (Mustafa Kama! J)(Civil) 3ADC 529

Citation: 1ADC 558, 2ADC 120, 2ADC300, 3ADC 602, 5 ADCM 72, 4ADC 231

Subject: Industrial Relations

Delivery Date: 2018-11-25

The Industrial Relations Ordinance, (XXII of 1969), Section 7(2), 7A(l)(b), 10(2), 11 19(2).

Trade Union does not cease to exist due to retrenchment of its workers or the workers retain the membership of their union and it also appears the provisions of section 7A(1) (b) of IRO do not provide so. Standard Match Factory Ltd vs Chairman, First Labour Court, (Md. Tafazzul Islam J) (Civil) 1ADC 558

The Industrial Relations Ordinance, (Ordinance XXIII of 1969) Section 7(1)(2), 22.

If it is found desirable by the authority that in view of the special nature of services rendered by its employees the organisational set-up of trade unions of the Biman or any other organization containing similar professional groups should receive special consideration so as to meet their special situations, then the authority may consider whether, consistent with the constitutional provisions and the statute, their special needs in respect of trade union matters can be met by an appropriate legislation. In the meanwhile all existing arguments between any of the appellant unions and the Biman, shall remain operative for the duration of the respective agreements. Secretary of Aircraft Engineers etc. (4) vs The Registrar of Trade Unions & ors (4) (Mustafa Kamal J)(Civil) 2ADC 120 cases of workers working for an establishment or industrial

The Industrial Relations Ordinance, (XXIII of 1969), Section 2 (XXVIII), 9, 22 (5) (a).

Whether a person is a worker or not depends upon, the definition in section 2 (XXVIII) of the Ordinance vis-a-vis the terms of the agreement under which they are employed. No general proposition can be laid down to apply in all organization. The words 'directly or through a contractor' occurring in the definition mean that the employment may be by the management directly or through a contractor. In either case there has to be a contract of employment between the management and the person employed. Karnaphuli PMWU vs KPM Employees Union (Bimalendu Bikash Roy Choudhury J)(Civil) 2ADC300

The Industrial Relations Ordinance, 1969, Section 27A, 39D.

By reducing the maximum limit of working hours to 3SV2 hours and 44Vi hours in a week in place of 48 hours through a settlement, arrived at between the Management and the CBA of the workers, the clerical staff/worker cannot and does not automatically get overtime allowance at double the ordinary rate of wages for working beyond 5SV2 hours in a week, because the same is not specifically provided for either in the said settlement or in any law or award. The General Manager vs The Chairman, Labour Court (Mustafa Kamal J)(Civil) 3ADC 602

Industrial Relation Ordinance, 1969 Section 34

Petition for cancellation of the said order of transfer; that during the pendency of the said petition, the petitioner issued a release letter of the respondent on 22-01-1979 and thereafter on 22-12-1979 the petitioner illegally stopped the subsistence allowance of the respondent No.l from the date of issuing of the said release letter and also stopped paying wages to the respondent No.2 till 11-05-1988. Bangladesh Agriculture Development Corporation vs. Zinnatul Hossain (SyedJ. R Mudassir Husain CJ) (Civil) 5 ADCM 72

The Industrial Relations Ordinance, 1969, Section 34

Agrabad Hotel and Restaurant do not fall within the category of industrial undertaking as per the Scheme set out in the schedule of the Companies Profits (Workers Participation) Act, 1968 and as such the appellant company was not liable to establish a Workers Participation Fund and Workers Welfare Fund as demanded by the respondent workers.

Section 34 of the Industrial Relations Ordinance, 1969 and directing to implement the scheme under the Companies Profits (Workers Participation) Act, 1968 Hotel Agrabad Ltd. Chittagong, represented by its Managing Director vs. The Chairman_y First Labour Court, Katungonj (Md. JoynulAbedin J) (Civil) 4ADC 231

Citation: 2ADC 640, 2ADC 827

Subject: Inland Shipping

Delivery Date: 2018-11-25

The Inland Shipping Ordinance ^x1976, Section 54.

Even if it is conceded that certain Rules have not been complied with, the noncompliance of these rules will not make the time table issued under Rule 15(l)(c) in favour of M. V. Miraj to be illegal and without any lawful authority on the ground of non compliance of the Rules,. It was contended that the Rule I5(l)(c) cannot be relied upon if the requirement of section 54 of the Inland Shipping Ordinance 1976 to have a Route permit has been violated. Sirajul Hoque vs Bangladesh (Mainur Reza Chowdhury J)(Civil) 2ADC 640

Intention or motive relevant for banami transaction

It is true that intention or motive to create a benami transaction is also an important relevant fact for deciding the question who is the real owner of the property where the same has been claimed to be a banami one, but that does not mean that intention or motive should receive the only consideration by a court of law for deciding the nature of the alleged transaction./?/^ Rani vs Shantosh Chandra Dey (Mohammad Abdur Rouf J)(Civil) 2ADC 827

Citation: 2ADC 453

Subject: Janata Bank Employees Service

Delivery Date: 2018-11-25

The Janata Bank Employees Service Regulations, 1981, Regulation 28

The Additional paper book which has been filed before this court and not controverted by respondent No.l discloses that the proceeding was instituted, the appointment of the Inquiry Officer was made, the charge-sheet was framed, the inquiry was concluded and the second show cause notice was served all by and at the instance of the General manager (Administration), while the order of dismissal was passed by the Board. The Assistant General Manager (Administration) only communicated and served notices etc. Therefore the proceeding against respondent No.l and th£ order of dismissal passed by the competent authorities must be found to have been held in accordance with regulation 28 of the Service Regulations. Janata Bank vs Md. Mofazzal Hossain (Bimalendu Bikash Roy Choudhury J)(Civil) 2ADC 453

Citation: 1ADC 280, .l ADC 431,

Subject: Land Acquisition

Delivery Date: 2018-11-25

The Land Acquisition Act, 1894. Section 23, 24, 3(a), 2 (III).

Statutory compensation is to be assessed for the benefits arising out of the land, things attached to land and permanently fastended to anything attached to the earth.

Bangladesh vs Mrs. Anwara Huq ( Md Ruhul Amin J) (Civil) 1ADC 280

The Land Acquisition Act 1894, Section 16,11

A careful reading of section 16 indicates that where the collector has made an award under Section 11 in respect of land acquired under this Act such land shall vest absolutely in the Government free from all encumbrances. Thus, vesting title in the land acquired becomes absolute as soon as compensation award is made. If the Government after making compensation award does not elect to go physically into possession of land, it cannot be said that because of that title does not vest absolutely in the government. According to Section 16 vesting is absolute as soon as commendation award is made. These submissions were never made at any stage in disposing of the title Suit No. 176 of 1984. The petitioner is now making out a third case with completely now facts which cannot be considered and decided in review. Muijibul Haque vs 1. Lokinan Mia (Mainur Reza Chowdhury C J)(Civl).lADC 431

Citation: 4ADC 42

Subject: Limitation

Delivery Date: 2018-12-03

The Limitation Act, 1908, Section 5

The High Court Division condoned the delay upon observing that the ground of delay cannot be characterized "to be loose and the application cannot be axed down. The delay of 150 days on the part of the Government who remains a slow moving juristic person, thus, demands due consideration and the delay caused may be condoned to secure ends of justice". If an appeal against an order of acquittal is filed by the Government either before the High Court Division or the Court of Session beyond the period as provides in Article 157 of the Limitation Act, 1908, then in such a case an application seeking condonation of delay filed under Section 5 of the Limitation Act is very much entertainable and if the Court is satisfied with the explanation offered as to how delay occurred, then is quite competent to condone the delay. Dr. M.A. Mazed and others vs. Government of the People's Republic of Bangladesh (Md. RuhulAmin J)(Criminal) 4ADC 42

Citation: 1ADC 203, 1ADC 312, I ADC 324, I ADC 427

Subject: Limitation

Delivery Date: 2018-11-25

Limitation Act 1908 (Act IX of 1908).

It is cardinal principle of law that the plaintiff is to prove his case and he must not rely on the weakness or defects of defendant's case. Moksed Ali Mondal being dead his heirs Md. Abdul Mannan vs Abdus Samad Mondal (M. M. Ruhul Amin. J) (Civil) 1ADC 203

The Limitation Act( IX of 1908), Article 113

Abandoned properties under Ordinance 54 of 1985. Promulgation of President's Order No. 16 of 1972.Time limitation will start from the date of refusal expressly or by conduct when there is no express refusal. Secretary Ministry of works vs Md. Yusuf Ali Khan (K. M. Hasan. 3) (Civil) 1ADC 312

The Limitation Act (IX of 1908), Section 12. Regulation 43^ (8) of the Regulations

Day on which show cause charge sheet was communicated to a delinquent employee of an organization, herein the appellant, the said date is to be excluded since the same is in consonanit with the rules of computation of period either for the purpose of limitation of legal proceeding or enquiry before the Tribunal or for the departmental enquiiry. Md. Ashequr Rahaman vs B.A.R.J.R.M. Chairman (Md Ruhul Amin J)(Civil) I ADC 324

The Limitation Act (IX of 1908), Section 48,120.

LIM accounts. Therefore, the plaintiff did not acquire any right and title over the goods. The plaintiff was a mere assignee of the goods and goods

The Limitation Act (IX of 1908) Section 5.

remained with the Bznk.Janata Bank vs Abdus Salam (Md. Fazlul Haque, J)(Civil) 1 ADC 406

That while the learned Advocate claims to have not been Present in Dhaka on 7.2.1996, he being in Noakhli but in the order book dated 7.2.1996 when the matter came up in the Daily Cause list his appearance was there when the order was passed allowing 2 weeks time for compliance of the office note... years and the petitioner having^r filed to make out case for recalling the order of discharge the application for restoration was rejected. Administrator Gammon Bangladesh Ltd -vs- ToW Mia (Fazlul Haque, J) (Civil) I ADC 427

Citation: 3ADC 818

Subject: Local Govt.

Delivery Date: 2018-11-25

The Local Govt. (Union Farishads) Ordinance, 1983, Section 7(2)(e)

The Sammilani Girls' high School is a private High School recognised by the Board of Intermediate and Secondary Education, Jessore and has always been a purely private High School and that its recognition by the_% Board of Intermediate and Secondary Education does not change the said High School into a Government High School. Mofizul Huq vs Mofizur Rahman &ors.(A.T.M. Afza CJ)(Civil) 3ADC 818

Citation: 1ADC 26

Subject: Manual of Civil Suit

Delivery Date: 2018-11-25

The Manual of Civil Suit Instructions, Section XVI.

In this view of the matter we feel inclined to allow the appeal setting aside the impugned judgment and decree the suit being an old one, we however, do not like to send it back to the Trial Court 'and would, therefore remand it to the High Court Division. Md. Nurul Huq @ M. N. Huq Vs Nirmal Chandra Dutta (Amirul Kabir Chowdhury J)(Civil) 1ADC 26

Citation: 5 ADC 324, 4 MLR (AD) 140, 4ADC 876

Subject: public Servants Retirement

Delivery Date: 2018-11-26

The meaning of public Servants Retirement Act 1974 (Act XII of 1974)

Retiring the respondent No. 1 in both the appeals from their services on completion of their 57^tn years of age. Bangladesh Gas Fields Co.Ltd vs. Md.Fariduddin Ahmed (Md.Tafazzul Islam J) (Civil) 5 ADC 324

Ministry of Works and others Vs. Helaluddin Ahmed reported in (1999) 4 MLR (AD) 140

Section 7 of ordinance No. 54 of 1985

The writ petition was filed challenging the legality of the judgment dated January 3, 1988 of the Court of Settlement in Case No. 119 of 1987 (Kha-145-Tinshed Colony, Block-D), Quarter No. 169 (Holding No. 38), Tinshed Colony, Mohammadpur, Dhaka. The said case was filed challenging the listing of the property in the 'Kha' list and publishing thereof in the Bangladesh Gazette (Extra-Ordinary) dated September 23, 1986. Rowshan Ara Begum vs. The Secretary, Ministry of Works (Md. Ruhul Amin J) (Civil) 4ADC 876

Citation: 5ADC 864, 5ADC 869, 5ADC861, 5 ADC 569, 5 ADC 573

Subject: Mines and Mineral

Delivery Date: 2018-11-26

The Mines and Mineral Act 1992 Rules, 1968

Refusing to renew the lease of the pathor mahals granted in their favour for further period as per provisions of the Mines and Minerals Rules 1968 as amended upto 1995 and also in terms of the lease agreements executed in their favour on the averments that they, with a view to take lease of the respective pathor mahals, filed applications to the respondent No.2 as per provisions of Mines and Minerals Rules, 1968 as amended upto 1995. Babul Ahmed vs. Government of Bangladesh (Md. Tafazzul Islam J)(Civil) 5ADC 864

As it appears both the trial court as well as the lower appellate court disbelieved the case of the plaintiff that he purchased the suit land from his personal income which he earned after getting the license of export and import in the year 1966; the trial court specially found it incredible that the plaintiff, within such a short time of starting his provate business, could purchase the suit land and observed that the plaintiff failed to prove his business from which he obtained money to purchase the suit land and accordingly dismissed the suit holding that the fact of previous separation of the brothers prior to purchase of the suit land could not be presumed to be true and the plaintiff failed to prove separate business and the claim of purchase of the suit land out of his own earning and the plaintiff also failed to prove his exclusive title in the suit land. Md. Sanowar Ali vs. Md. Nonahar Ali (Md. Tafazzul Islam J)(Civil) 5ADC 869

Dr. Mohiuddin Farooque Vs. Bangladesh reported in 49 DLR(AD) 1

But without the decision of the planning committee the advertisement for appointment of teachers was made. Hence the resolutions and advertisment

are without lawful authority.............. (2)

Professor Hamida Banu vs. Vice-Chancellor, Chittagong University (MM. RuhulAmin J) (Civil) 5ADC861

Munsur Ali Mallik vs. Nurul Haque Mallik BCR 1986 (AD) 56

The High Court Division further held that non-inclusion of a party cannot be

construed as a fraud............. (6)

Secretary, Rahmat-E-Alam Islam Mission vs. Md. Shafiqul Huq (M.M. Ruhul Amin J) (Civil) 5 ADC 569

Recommended for sanctioning loan and a departmental proceeding being No. 12/1995-1996 was started against him; the matter was enquired into by a two member committee which submitted report. The authority concerned awarded a penalty to deposit an amount equivalent to 7(seven) days basic salary to the Bank; the petitioner being aggrieved preferred Departmental Appeal No.76 of 2000-2001 which was also dismissed and hence the case. Md. Abdus Satter vs. Government of the Peoples Republic of Bangladesh (Md. Abdul Matin J) (Civil) 5 ADC 573

Citation: 5 ADC 793, 5 ADC 880

Subject: Muslim Marriage and Divorce

Delivery Date: 2018-11-26

Muslim Marriages and Divorces (Registration) Act, 1974

Seeking declaration that he is the legally and validly appointed Marriage Registrar of Jaforganj Union. Kazi Ali Akber vs. Md. Hafizuddin Ahmed (Md. Tafazzul Islam J) (Civil) 5 ADC 793

The Muslim Marriage and Divorce (Registration) Act, 1974, Section 4

Petitioner was appointed Nikah Registrar on 09.03.2000 for No. 7 Dhalua and N. 9 Baliatali Unions. It is to be noted here that the Ministry approved the appointment of respondent No.5 on 15.02.2000 for No. 9 Baliatali Union and curtailed that Union of the Jurisdiction of the petitioner failed to issue license of Nikah Registrar to respondent No.5 Who as the petitioner filed Writ Petition No. 5591 of 2003. Md. Emran Hossain vs. Bangladesh

Government (Mohammad Fazlul Karim J) (Civil) 5 ADC 880

Citation: 3ADC 343, 4ADC 79, 5ADC 261

Subject: Narcotics Control

Delivery Date: 2018-12-03

The Narcotics Control Act, 1990 Section 19(1).

Leave is, therefore, granted to consider the ground that the trial Court and the High court Division failed to consider that unless the quantity of hereon in question is ascertained by a report by chemical examiner the conviction under section 19(1) of Table l(kha) of Narcotics Control Act, 1990 is not sustainable in law and as such it is liable to be set aside. Preparation of paper book is dispensed with as prayed for. The petitioner is permitted to add additional ground No.2. Md. Ashraful Islam vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 343

Section 23,25,39

The letter dated 20-08-1998 returned by the Department of Narcotics Control to the Chief Metropolitan Magistrate is not merely letter, it is a naraji petition, it is not a letter simpliciter, it is an application based on certain facts and circumstances of the case and as such the learned Judges of the High Court Division are wrong in holding that the order of the learned Chief Metropolitan Magistrate dated 28-05-1998 is not a legal order but based on cogent grounds. The High Court Division having not applied its judicial mind in construing the provisions of Section 173(3B) of the Code of Criminal Procedure, which conferred on the Magistrate jurisdiction to direct further investigation and as such the findings and decisions arrived at by the High Court Division are liable to set aside. The State vs.A. K. M. Saiful Islam (J. R. Mudassir Husain C J) (Criminal) 4ADC 79

Section 19(1), Clause 7 (Ka)

Convicting the petitioner under Clause 7(Ka) of Section 19 (1) of the Narcotic Control Act, 1990 and sentencing him to suffer rigorous imprisonment for 2 (two) years and also to pay a fine of Tk.3,000/-, in default, to suffer simple imprisonment for 3 (three) months more. Md. Kamruzzaman alias Rentu vs. The State represented by the Deputy Commissioner, Lalmonirhat. (Md. Hassan Ameen J) (Criminal) 5ADC 261

Citation: 1 ADC 383, 2ADC 742

Subject: Negotable instruments

Delivery Date: 2018-11-26

The Negotable instruments Act (XXVI of 1881), 1 section 3(b), 46, 63

The appellant Bank is a trustee and the relationship existing between him and the appellant Bank is that of a debtor and creditor; the appellant Bank ,being a schedule Bank and owned by the Government is a "person" within the meaning of article 102 of the Constitution and was duly bound to pay the proceeds of the FDR to the respondent No.l but it having failed the respondent No.l, being denied of the right to property guaranteed under Article 42 of the Constitution, was entitled to invoke writ jurisdiction seeking necessary relief for a direction upon the appellant Bank. Agrani Bank vs Ansarul Hoque (Md. Tajazzul IslamJ) 1 ADC 383

Section 79, 80,117

It also appears that considering the situation which arose in view of the Order 37 providing for filling special kind of suit and special procedure for an adjudication and also considering many instances in which application could not be filed within time, in many states of India, by amendments, provisions have been made either allowing applications under section 5 of the Limitation Act or giving power to the Court to condone the delay. National Bank Ltd vs M.S. Khan (Md. Tafazzul Islam J)(Civil) 2ADC 742

Citation: 2ADC 793, J ADC 23, 2ADC 798, 2ADC 801, 2ADC 879, 5ADC 538, 5ADC 891, 4ADC 357, 4ADC 446

Subject: Negotiable Instrument

Delivery Date: 2018-12-03

The Negotiable Instrument Act, (XXVI of 1881), Section 138(1) (b) (c), 141.

It does not constitute any offence or no offence shall be deemed to have been committed as alleged and as such it would be manifestly unjust to allow process of the Court to continue and would infact be an abuse of process and, therefore the proceeding is liable to be quashed. Nizam Uddin Mahmood vs Abdul Hamid Bhuiyan (Amirul Kabir Chowdhury J)(Criminal) 2ADC 793

The Negotiable Instruments Act (XXVI of 1881), Section 138

A criminal proceeding can be quashed under section 561A of the Code of criminal procedure if the same does not disclose any case or it manifestly appears that there is a legal bar against the institution or continuation of the said proceeding or whether the facts disclose an offence or not can only be determined on evidence being adduced. Abdul Aziz vs Khaja Abdul Gani (K. M. Hasan C. J) (Criminal) J ADC 23

Section 1881, 138,14

We are, therefore, of the view that though the appellant presented the cheque on four dates but after the cheque was dishonoured for the last time on 26.10.2000, he served the required notice on 06.11.2000, well within statutory period and as such filing of the instant complaint on 11.12.2000 cannot be regarded as illegal. Munshi Md. Rashed Kamal vs Abdus Salam (Amirul Kabir Chowdhury J) (Criminal) 2ADC 798

In the circumstances, we hold that the High Court Division rightly made the Rule absolute and quashed the proceeding. Md.

Shahjahan vs Azizur Rahman (M.M. RuhulAmin J)(Criminal) 2ADC 801

Section 138,141

In order to make a person liable under section 138 the payee of a cheque has to give a notice in writing to the drawer of the cheque within 15 days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid in terms of clause (b) to the Proviso. S.M. Anwar Hossain vs Md. Shafiul Alam (Chand) (A.T.M. Afzal C J)(Criminal) 2ADC 879

Section 138

Offence for dishonor of cheques under section 138 of the Negotiable Instrument Act, (2)

The High Court Division held that the Provision of Section 138 of the Negotiable Instrument Act have been complied with before the filing of the petition of complaint. The cheques were presented to the Bank within a period of six months from the date on which it is drawn and within the period of its validity and the complainant made a demand for payment of the said amount by giving a notice in writing to the drawer of the cheque within 15 days of the receipt of the information by him from the Bank regarding the return of the

cheques unpaid............. (5) M.A.K. Khan

Shamol vs. The State & another (M.M. Ruhul Amin J) (Criminal) 5ADC 538

Section 138,141(b)

Section 241A of the Code of Criminal Procedure praying to discharge him but the learned Magistrate rejected the appli- cation and then the accused filed Criminal Miscellaneous Case No.5518 of 2001 under Section 561A of the Code of Criminal Procedure praying to quash the proceeding and the High Court Division by the judgment and order dated 25.06.2002 made the rule absolute quashing the proceeding. Nizamuddin Mahmood vs. Abdul Hamid Bhuiyan (Md. Abdul Matin J) (Criminal) 5ADC 891

Section 138

That though the appellant presented the cheque on four dates but after the cheque was dishonoured for the last time on 26.10.2000, he served the required notice on 06.11.2000, well within statutory period and as such filing of the instant complaint on 11.12.2000 cannot be regarded as illegal. It is clear that the High Court Division took a contrary view on an erroneous interpretation of the law and quashed the proceeding. The impugned judgment is bad in law and as such is not sustainable. Munshi Md. Rashed Kamal vs. Abdus Salam and another (Amirul Kabir Chowdhury J) (Criminal) 4ADC 357

Section 138

For non-compliance with the requirement of Section 138(1) (b) and (c) of the Act no offence has been constituted or deemed to have been committed and as such as the proceeding has correctly been quashed. Nizam Uddin Mahmood vs. Abdul Hamid Bhuiyan and another (Amirul Kabir Chowdhury J) (Criminal) 4ADC 446

Citation: 1ADC 310, I ADC 515, 2ADC 274, 2ADC 365, 2ADC 367, 2ADC 455, 2ADC 635, 3ADC 97, 5ADC 847, 5ADC 850

Subject: Non Agricultural Tenancy

Delivery Date: 2018-11-26

The Non Agricultural Tenancy Act (XXIII of 1949), Section 24.

Only a co sharer tenant and none else can pre empt. Mossammat Khursheda Jahan alias Mst. Monju khorsheda vs Syada shafinaz Jahan (K.M Hasan, J.) (Civil) 1ADC 310

"Since in the instant Cases the holding in question has been separated or sub divided upon opening a new khatian at the instance of the pre-emptor, the pre-emptor cesaed to be a cosharere in the holding in question". Abdul Mutnin alias Tanu Miah vs Mahfujur Rahman (Md. Ruhul Amin. J)(Civil) I ADC 515

Section 23, 2(4)

Plaintiff got the settlement as far back as on 15 Chaitra 1355 B.S which corresponded to March, 1948 but the Non-agricultural Tenancy Act, 1949 came into force on 20^tn October, 1949. As such its application in respect of the suit property does not arise at all. Mrs. Nirmala Bala Das vs Ganesh Chandra Dhupia (Mohammad Abdur Rouf J) (Civil) 2ADC 274

Section 24

The section is very clear that only a co-sharer tenant and none else can preempt. But in this particular case the pre-emptor respondents are not co-sharer tenants because of the decree in the suit for specific performance of contract in which they were parties by way of substitution. As a result they have themselves become the vendors of the disputed land and no longer remained co-sharer tenants of the disputed land. Mossammat Khursheda Jahan alias Mst. Monju Khorsheda vs Syada

Shafinaz Jahan (K.M. Hasan J) (Civil) 2ADC 365

Section 24

The pre-emptee is a co-sharer in the holding otherwise than by purchase; Heba though is a transfer but not a transfer by purchase and transfer of a portion of the holding in such manner is protected and pre-emption for such transfer does not lie against such transferee. Preemption in case of such transfer by Heba is barred under section 24(11) (a) of the Non-Agricultural Tenancy Act, 1949. Monzur Rahman Khan vs Mst. Tahera Parvin (Md. Fazlul Haque J)(Civil) 2ADC 367

Section 9

The ejectment suit against a monthly non-agricultural tenant holding land for more than one year but less then 12 years the tenant is entitled to 6 months notice and that section 106 of the Transfer of Property Act must be read as being subject to section 9 of the Non-Agricultural Tenancy Act which gives the same right to a monthly tenant as to other tenants we hold that the High Court Division has not committed any wrong and illegality in allowing the appeal and dismissing the suit. M/s. Shahjhan Enterprise Ltd. Vs Meghna Petroleum Ltd. (Mahmudul Amin Chowdhury C J). (Civil) 2ADC 455

Section 7(2)

In respect of non agricultural tenancy holding created before the Transfer of Property Act the existence of the following elements are necessary in order to make out the presumption of permanency of tenancy:

(1) The origin of a tenancy for residen-
tial purpose must be unknown and the
principle of a lost grant is invoked by
tenant.

(2) Existence of a permanent pucca buildings on the lands built long before the arising of any controversy and that to the knowledge of the landlord.

(3) Reorganization of succession and transfer by the landlord. Mati Gouri Das vs A.B. M. Hasan kabir & Ava Rani Aich. (K. M. Hasan J)(Civil) 2ADC 635

Section 24

In the instant case nothing has been brought on record that the tenancy was created for non-agricultural purpose. The character of the land is always referable to the purpose for which settlement was made. If the settlement was made for a purpose unconnected with the agyculture in that case the land even ^:X.used for the purpose connected with the agriculture would remain as non-agricultural land. It may also be mentioned that the purpose of the land may also be referable to its location or situation i.e. if it is within the urban area or in other words within the Municipal area in that case the land would assume the character of non-agricultural land even if the said land was for the purpose connected with agriculture. Abdul Khaleque vs Abdul Noor (Md. Ruhul Amin J)(Civil) 3ADC 97

Section 24

Application seeking pre-emption of the lard transferred by one of the sons of Rajjab Ali Khan claiming to be co-sharer by inheritance. Once the properties among co-sharers are partitioned by a registered

Section 24

The undenied position is that Miscellaneous Case was filed on 17.10.1989 seeking pre-emption of a transaction that took place on April 4, 1978 (the document was registred on August 8, 1978). The pre-emption was sought alleging that the pre-emptor came to know about the transfer for the first time on September 1, 1989 and thereafter he became certain about the transfer upon obtaining certified copy on September 12, 1989. It was alleged that the pre-emptee disclosed about the transfer for the first time in a 'salish' held on September 1, 1989. It is seen from the judgment of the appellate Court that the pre-emptor to establish his case about the knowledge of the transaction did not depose in Court. Pre-emptor's son figured as P.W.I in the Miscellaneous Case and it is seen form judgment of the appellate Court that said P.W.I although deposed on behalf of his father but there is nothing on the record to show that in the 'salish' wherein disclosure about the transfer was said to have been made P.W.I was present. No explanation was offered as to why the pre-emptor did not depose in the case. Md. Maniruddin vs. Md. Totab Ali (Md. RuhulAmeen J) (Civil) 5ADC 847

It appears from the record that admittedly the Superintendent of Police, Magura took all the disciplinary actions including framing of charge, appointment of enquiry officer, service of second show-cause notice and imposition of penalty dismissing the petitioner from service under the provision of P.R.B. Charge has been framed against the petitioner on the allegations of negligence of duty and misconduct warranting major penalty. These two offences are punishable under the Police Officer (Special Provisions) Ordinance, 1976. After promulgation of the said Ordinance for the offence of misconduct the police officer can be dismissed, removed, discharged from service, compulsorily retired and be reduced to lower rank only under the provisions of the ordinance and under no other law. The Deputy Inspector General of Police and the Police Commissioner are the authorities to impose any of the above penalty upon the Sub-Inspector or sergeant. The Superintendent of Police is not the authority to impose any major penalty upon the sergeant under the Police Officers (Special Provisions)

Ordinance, 1976........... (9) Khandkar Md. Mizanur Rahman Hira vs Government of the People's (Mohammad Fazlul Karim J) (Civil) 5ADC 850

It appears that the High Court Division found that the appellate court did not consider the evidence on record while setting aside the judgment of the trial court and further held that the plaintiffs kabala was earlier on the basis of which they took possession from the admitted co sharer and the defendants are subsequent purchaser from the plaintiff as well as the co-sharers and they cannot deny the title and possession of the plaintiff. Md. Tasimuddin vs. Md. Mofizul Islam (Md. Abdul Matin J) (Civil)

Citation: 2ADC 443

Subject: Non-cadre Class-I and II Gazetted Officer

Delivery Date: 2018-11-26

The Non-cadre Class-I and II Gazetted Officer (Customs, Excise and VAT) Appointment and Service terms and conditions Act (XX of 2000), Section 8.

The said Act is to regulate the conditions, appointment and terms and conditions of service of the First and Second Class (Non-Cadre) Officer working in the Customs department under the National Board of Revenue and the same not being contrary to the purpose and purport of Article 133, by no means could be termed to be ultra vires the said provision of the Constitution.

Bangladesh vs Mohammad Salahuddin Talukder (Mohammad Fazlul Karim J)(Civil) 2ADC 443

Citation: I ADC 415, 2ADC 563, 2ADC 628, 2ADC 757, 3ADC 360, 4ADC 876, 4ADC 901, 4ADC 863

Subject: Ordinance

Delivery Date: 2018-11-26

The Ordinance 1985 (LI V of 1985), Section 5, (1), (2), 7.

Section 5(2) of the Ordinance Clearly provides that the list published under sub-section (1) shall be conclusive evidence of the fact that the buildings included therein are abandoned property and have vested in the Government as such... The onus therefore is squarely on the claimant of the building to prove that the building is not an abandoned property. Bangladesh vs J alii (A. TM. Aftal. C J) (Civil) I ADC 415

Ordinance No. 54 of 1985 Section 5(2).

That the building in question is in possession, control and custody of the Government since promulgation of P. O.

No. 16 of 1972 .................. that the High

Court Division committed a grave error of law in entertaining new facts without considering that in interfering with the decision of an inferior Tribunal all that is to be seen is whether the Tribunal has exceeded its jurisdiction or there is want of jurisdiction or there is an error apparent on the face of the record or a finding of fact based on inadmissible evidence, non consideration of material evidence on record or on no evidence at all. Bangladesh vs Jahanara Rashid (Mustafa Kamal J)(Civil) 2ADC 563

Section 7

In case of non-consideration of materials by the trial court normally the superior courts send the case on remand but in the instant case the facts revealed are so glaring on the face of the documents filed by the respondents that we ourselves found it necessary to dispose of the case finally. More so it appears from the records that since 1972 the owners of the property are moving from posts to pillars for addressing their grievance and as such we are of the view that further delay in the matter cannot be allowed and so it is not a fit case for sending on remand. Bangladesh vs Miss Nasima Khatoon (Amirul Kabir Chowdhury J)(Civil) 2ADC 628

The Ordinance No. XXIII of 1973, Section 3.

As payment of bonus to employees is an incentive for service rendered by them, such payment of bonus as directed by the Government is not dependent on profit. Commissioner of Texes Dhaka (South) Zone vs M /S. Ujala Match Factory (Mainur Reza Chowdhury J)(Civil) 2ADC 757

Ordinance No. 33 of 1961 Section 35.

Under Section 35 of the Board of Intermediate and Secondary Education Ordinance, 1961 (Ordinance No. 33 of 1961 ) read with Section 2(d)(VI), of the Public Retirement Act, 1974 the age of retirement of the respondents being permanent employees of the Board is 60 and not 57 years, therefore, the impugned memo were issued illegally and without lawful authority. Chariman, BISE Jessore vs Golam Quddus & anr (6)(Amirul Kabir Chowdhury J)(Civil) 3ADC 360

Ordinance No.54 of 1985, Section 7

The writ petition was filed challenging the legality of the judgment dated January 3, 1988 of the Court of Settlement in Case No. 119 of 1987 (Kha-145-Tinshed Colony, Block-D), Quarter No. 169 (Holding No. 38), Tinshed Colony, Mohammadpur, Dhaka. The said case was filed challenging the listing of the property in the 'Kha' list and publishing thereof in the Bangladesh Gazette (Extra-Ordinary) dated September 23, 1986. Rowshan Ara Begum vs. The Secretary, Ministry of Works (Md. Ruhul Amin J) (Civil) 4ADC 876

Ordinance 54 of 1985, Section 7

Abandoned property in 'Ka' list. On this score we are of the view that the judgment and order of the High Court Division in setting aside the judgment and order of the Court of Settlement cannot be found fault with. Regarding the emphasis laid by the learned Attorney General that the High Court Division cannot re-assess the evidence on record and base its judgment on fresh appreciation of evidence we do not disagree. Bangladesh represented by the Secretary vs. Miss Nasima Khatoon (Amirul Kabir Chowdhury J)(Civil) 4ADC 901

Ordinance No. 54 of 1985, Section 7

Challenged the judgment and order of the Court of Settlement. Recommended for release of the same to the Commissioner of Chittagong Division from the list of abandoned buildings. The further case is that Md. Shafi and she are Bangladeshi nationals by birth and hence no permission for transfer of the property is required but still the building was not released and she was constrained to file the case before the Court of Settlement which after hearing arbitrarily dismissed the case. Government of Bangladesh vs. Rabaya Begum & another (M.M. Ruhul Amin J)(Civil) 4ADC 863

Citation: 5ADC 58

Subject: Paris Convention

Delivery Date: 2018-11-27

The Paris Convention Section 6, 2(2).

Whereby an erroneous decision is reheard and corrected but lies only for patent error apparent on the face of the record. Unless the impugned order show as such merely reversing the order basing on the evidence on record would not render the order in review on those jurisdiction. Similarly, an error which has to be established by a long process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. M/s. Supermax International vs Samah Razor Blades Industries (Mohammad Fazlul Karim J)(Civil) 2 ADC 93 zens.... (5) Ranjit and others vs. Bangladesh represented (M.M.Ruhul Amin J)(Civil) 5ADC 58

Citation: 2ADC 773

Subject: Paurashava

Delivery Date: 2018-11-27

The Paurashava Ordinance (XXIV of 1977), Section 10(2)(g), 27.

That once the election process has been started, moreso, when in the instant case election result has been published in the official gazette the High Court Division has no jurisdiction under Article 102 of the Constitution to entertain any matter relating to election unless there is corum-non-Judice or malice in law. Abdul Halim Gazi and Bangladesh vs Afzal Hossain (Amirul Kabir Chowdhury J)(Civil) 2ADC 773

Citation: 4ADC 231

Subject: Payment of wages

Delivery Date: 2018-11-27

The Payment of wages Act, 1936, Section 15

Agrabad Hotel and Restaurant do not fall within the category of industrial undertaking as per the Scheme set out in the schedule of the Companies Profits (Workers Participation) Act, 1968 and as such the appellant company was not liable to establish a Workers Participation Fund and Workers Welfare Fund as demanded by the respondent workers.

Section 34 of the Industrial Relations Ordinance, 1969 and directing to implement the scheme under the Companies Profits (Workers Participation) Act, 1968 Hotel Agrabad Ltd. Chittagong, represented by its Managing Director vs. The Chairman, First Labour Court, Katungonj (Md. Joynul Abedin J) (Civil) 4ADC 231

Citation: JADC 9, 3ADC 81, 2ADC 12, 2ADC 181, 2ADC206, 2ADC 533, 2ADC 938, 2ADC 938, 4ADC 195, 5ADC 541

Subject: Penal

Delivery Date: 2018-11-27

The Penal Code (XLV of 1860), Section 409.

Misappropriation of 8 metric tons of wheat as has not been established beyond reasonable doubt consequently the appellant is entitled to the benefit thereof. Abdul Jalil Sarder vs The Stat (Md Ruhul Amin J')(Criminal) JADC 9

Section 409, 477A, 109

The Janata Bank Employees Service Regulation, 1995 Rule 28 (1), 49.The Fundamental Rule 29. Reducing the petitioner from the post of Senior Officer to the post of Principal Officer without arrear salary and other attending benefits was illegal and directed the Bank to reinstate the petitioner in his original post with arrear salaries etc. Janata Bank, ors. vs Mr. Khalilur Rahman (Amirul Kabir Chowdhury J) (Civil) 3ADC 81

Section 409

The order of dismissal passed on the basis thereof was not legal, or in other words order of dismissal having been passed taking into consideration the materials collected through flawed enquiry, the order of dismissal was not sustainable in law or in other words dismissal of the respondent No.2 was not legal. Pubali Bank Ltd. vs Chairman, First Labour Court, (Md. Ruhul Amin J) (Civil) 2ADC 12

Section 34, 109, 1208, 149, 302, 324

On behalf of the respondent Government affidavit - in - opposition was filed in which the allegations and submissions of the appellants were denied and it was asserted, inter alia, that the killing of the President of the country along with the members of his family and others including women and children at different places could not be said to be necessary for change of Government on the 20th August 1975, that the said killings were offences which no law can indemnify nor has indemnified, that no provision of the Constitution had made Indemnity Ordinance 1975 a part of the constitution, that paragraphs 3 A and 18 of the Fourth schedule have not curtailed the power of Parliament of repeal any Act of Parliament or Ordinance made during the period between the 20th August, 1975 and the 9th April, 1979, that several Ordinances made during the said period have been repealed either by Ordinance or by Act of Parliament and that the indemnity Ordinance not being a part of the constitution but an ordinary Law, the repeal thereof does not attract article 142 of the constitution and that the Indemnity Ordinance has been Validly repealed by the Indemnity (Repeal) Act, 1996 which is valid and constitutional. Shahriar Rashid Khan ors. (1) vs Bangladesh ors. (1) (A.T.M. Afzal C J) (Civil) 2ADC 181

Section 395, 397, 109, 409, 414

In a suit of this kind the trial Court and the appellate Court are not required to sit in judgment over the findings of either the Enquiry Officer or the punishing authority as no Court has jurisdiction to act as an appellate authority sitting on appeal over the findings of a domestic tribunal. No Court has the jurisdiction to substitute its own finding for that of the Enquiry Officer or the punishing authority, as the case may be. The trial Court and the appellate Court cannot assume the role of a fresh factfinding body over which either the Enquiry Officer or the punishing authority has already made their respective exercises in a domestic proceeding. The

Trading Corporatin of Bangladesh vs Kazi Abdul Hye (Mustafa Kamal J)(Civil) 2ADC206

Section 199, 200

The claim of the respondent No. 1 that the appellant is a bank loan defaulter has been persistently denied by the appellant and the matter is pending before the superior Courts and thus we do not find that there exits such a clear case capable to be decided at the micro-level on the interpretation of the relevant law. Abdul Halim Gazi & Bangladesh, Dhaka vs Afzal Hossain (Amirul Kabir Chowdhury J)(Civil) 2ADC 533

Section 406

The two trucks belonging to the plaintiffs were seized by the police in connection with the criminal case and as such the trucks were detained and the plaintiffs got the trucks released from the police custody by order of the court in which the criminal case is still pending and in our opinion the High Court Division rightly held that the plaintiffs were not entitled to claim any amount on this count. Abdul Quddus vs Latif Baxvany Jute Mills Ltd. (M. M. Ruhul Amin J)(Civil) 2ADC 938

Section 406

The two trucks belonging to the plaintiffs were seized by the police in connection with the criminal case and as such the trucks were detained and the plaintiffs got the trucks released from the police custody by order of the court in which the criminal case is still pending and in our opinion the High Court Division rightly held that the plaintiffs were not entitled to claim any amount

on this count......... (11). Abdul Quddus vs

Latif Bawany Jute Mills Ltd. (M. M. Ruhul Amin J) (Civil) 2ADC 938

Section 199 and 200

Declaring that the election of the Jhalakathi Pourashava has been vitiated as a whole and consequently cancelling the Gazette notification declaring the appellant as elected to the aforesaid post.

Once the election process has been started, moreso, when in the instant case election result has been published in the official gazette the High Cough Division has no jurisdiction under Article 102 of the Constitution to entertain any matter relating to election unless there is corum-non-judice or malice in law as decided by the Court. It has been settled long ago that disputed questions of fact are outside the jurisdiction of disposal of an application under Article 102 of the Constitution. Abdul Halim Gazi vs. Afzal Hossain and others (Amirul Kabir Chowdhury J) (Civil) 4ADC 195

Section 385/109/34

Obtain bail in the instant case filed against her under Sections 385/109 of

the Penal Code........... (2) Government of

Bangladesh vs. Sheikh Hasina and another (Md. Abdul Matin J) (Civil) 5ADC 541

Citation: 2ADC 154, 2ADC157, 2ADC 165, 2ADC 169, 2ADC 525, 2ADC 621, 2ADC 784, 2ADC 790, 2ADC 863, 2ADC 866, 2ADC 867, 2ADC 871, 42 DLR 465, 2ADC 882, 2ADC 1002, 4ADC 177, 4ADC 264, 4ADC 267, 4ADC 268, 4ADC 354, 3ADC 57, 3ADC 62, 3ADC 64, 3ADC 66, 3ADC 87, 3AD

Subject: Penal

Delivery Date: 2018-12-03

The Penal Code (XLV of 1860) Section 302/34.

All murders are culpable homicide but all culpable homicides are not murder. Excepting the General Exceptions attached to the definition of murder an act committed either with certain guilty intention or with certain guilty knowledge constitutes culpable homicide amounting to murder. State vs Abdul Barek (Mohammad Gholam Rabbani J)(Criminal) 2ADC 154

Section 409, Act (11 of 1947) Section 5(2)

On 6^m February 1978 several amendments took place in the Act incorporating, amongst others, a new sub-section as sub-section 6(IA) to section 6

..... Section 6(IA) of the Act, therefore,

was effective then. In view of Section 6(IA) of the Act we find that there was no necessity of further publication of the notification in any daily. Md. Atiquzzaman Khan vs The State (Amirul Kabir Chowdhury J)(Criminal) 2ADC157

Section 302/34

As per provisions of section 133 and illustration (b) of section 114 of the Evidence Act the evidence of an accomplice is unworthy of credit, unless he is corroborated in material particulars because an accomplice who betrays his associates is not a fair witness. Faruque @ Jamai Faruque & L.M. Liakat Ali Laskar vs The State (M. M. Ruhul Amin J)(Criminal)2ADC 165

Section 300,304

In the instant case there is no evidence from the prosecution side that the accused had the knowledge of the trial condition of Golok. We can now conclude that the incident took place upon a sudden verbal quarrel and in the heat of passion the two brothers gave blows on the chest of Golok without any guilty intention to cause the death and thus they committed culpable homicide not amounting to murder. Nibir Chandra Chowdhury vs The State (Mohammad Gholam Rabbani J) (Criminal)2ADC 169

Section 201/34, 302/34

In view of positive evidence that the blood stained lungi was that of accused Zahirul Alam Kamal, according to us, he cannot be absolved of the responsibility of murder of Chapa. Regarding two other accused respondents however we do not find any such incriminating element to connect them with the murder though they, as well, are found responsible for causing disappearance of the evidence. In such view of the matter we feel inclined to give benefit of doubt to the two other respondents Nasiruddin Jamal and Zillul Bari so far as the charge against them under Section 302/34 of the Penal Code is concerned. They however cannot be absolved of the charge under Sections 201/34 of the Penal Code. The State vs Khandker Zillul Bari (Amirul Kabir Chowdhury J)(Criminal)2ADC 525

Section 109, 111, 406, 420

It is a well-settled principle that a person who abets the actual perpetration of the crime at the very time when it is committed is a 'principal of the second degree' under section 109 of the Penal Code. This is applicable to the accused-importer. There is, however, no distinction between 'principal in the first degree' and 'principal in the second degree.' Under section 111 of the Penal Code an abettor is liable for a different act if. Islami Bank Bangladesh Ltd. vs Muhammad Habib (Mohammad Gholam Rabbani J) (Crminal) 2ADC 621

Section 561A, 195(l)(c) 200, 463, 465, 468, 419, 471, 475, 476

In view of the provision of clause (c) of section 195(1) of the Code of Criminal Procedure Respondent No. 2 may approach the court for taking appropriate step against the appellant since he used a deed in the suit as genuine inspite of knowing the same being forged and then it is for the court alone that may decide as to whether it would initiate proceeding against the appellant for committing one of the offence or more as mentioned in clause (c) of section 195 (1) Cr. PC. Md. Abu Daud Sarder vs. The State (Md Ruhul Amin J)(Criminal)2ADC 784

Section 114,148,149,302,307,325,326

At the time of trial if material (s) is placed before the Court and on consideration thereof if the court feels that it will not be desirable in allowing the respondents on bail in the interest of justice, the trial Court will be competent to make appropriate order as regard them. The State vs Md. Abdus Salter (M. M. Ruhul Amin J)(Criminal)2ADC 790

Section 302/34, 304

There is however no evidence that the appellants intended to cause the death of the victim. From the facts and circumstances of the case we think that the acts of the two appellants constitute at best an offence of culpable homicide not amounting to murder punishable under Section 304, Part I of the Penal Code. Aynul Sheikh & Jaber Sheikh vs The State (Amirul Kabir Chowdhury J) (Criminal) 2ADC 863.

Section 304/326

In the facts and circumstances we are of the view that ends of justice would best be met if the appeal is disposed of with the direction to the convict respondent Nos. 1 and 2 to take steps for getting the appeal heard and disposed of within five months from date. Abdus Sobhan vs Faruque Ahmed @ Sunan (Amirul Kabir Chowdhury J) (Criminal) 2ADC 866

Section 304

Ordinarily, an order of acquittal is not interfered with but to meet the cause of justice we find it a fit case for interference with the order of acquittal of the accused respondent. We have no hesitation to hold that Nuru Mira had been rightly convicted for the murder of Amjad and that reversal of his conviction by the appellate Court is totally unlustified as its finding as to the nature of the fatal injury of Amjad is based on surmises. The State vs Nuru Mira (Shahabuddin Ahmed CJ)(Criminal) 2ADC 867

Section 302/109

Under section 134 of the Evidence Act believing of only eye-witness is legally permissible and conviction can be based on the sole evidence of only one eyewitness if found to be trustworthy. Md. Yousuf Bepari vs The State (M.M. Ruhul Amin J)(Criminal) 2ADC 871

Section 147,148, 149, 302, 323, 324, 379, 447

Sheikh Ahmed Vs. The State 1979 Bangladesh Supreme Court Reports Volume III at page 417. Giasuddin vs.

The State 44DLR (AD) 225. Al-haj Ahmed Hossain Khan Vs. Rezaur Rahman 42 DLR (AD) 225 Shahajahan Manik and Farida Aktar Rina Vs. The State 42 DLR 465.

In view of the allegations and the evi-dence on record, we are of the view that
these accused appellants could not be guilty on evidence under section
302/149 of the Penal Code for being a number of unlawful assembly having
the common object of committing mur-der of the victims Accordingly, the

accused appellants in Criminal Appeal No.38 of 2003 are convicted under section 148 of the Penal Code. Abdul Aziz & Monowar Hossain vs The State (Mohammad Fazlul Karim J)(Criminal) 2ADC 882

Section 302/34

In the instant case we have considered the surrounding circumstances, including the place, time of the alleged occurrence and kind of witnesses produced to support evidence of P. W.2 and we are in agreement with the High Court Division that under the circumstances the testimony of P.W.2 is not sufficient to maintain conviction and more so her evidence also, in the facts and circumstances, could not be relied upon to be

true........... (6). The State vs Muktu Mia

and ors (Amirul Kabir Chowdhury J)(Criminal) 2ADC 1002

The penal Code, Sections 420/409/467/468/471/466

The respondent is a registered Private Limited Company of Bangladesh and is an export oriented industry and manu-facturer of poly propylene cover bag used in readymade garments factory and poly propylene is a prime raw material of the said industry and the respondent imported the said goods properly and legally for industrial consumption and as such the imported goods being a banned item as alleged can not be said to be banned item rather it is an importable item and any general importer can import it on payment of proper duty and tax.

The imported goods arrived at Mongla Port on 09-06-2002 from Indonesia and the respondent presented the bill of entry to the Mongla Customs House for assessment and to release the goods and on completion of physical verification the Customs Authority raised objection that Bond Licence submitted with the bill of entry is forged but actually the bond licence is an instrument to facilitate the importers to release imported goods without paying any tax. The Solicitor represented by the State vs. Anisuzzaman Chowdhury and other (Syed J.R. Mudassir Husain CJ)(Criminal) 4ADC 177

Section 409/109

In collusion with each other for illegal gain misappropriated Tk. 11,80,615/- by false billing against consultancy service and thereby committed an offence punishable under sections 409/109 of the Penal Code read with section 5(2) of Act II of 1947.

Section 561A of the Code of Criminal Procedure praying for quashing the proceeding and the High Court Division by the impugned judgment and order made the Rule absolute.

That after completion of entire work of the project when the final bill would be submitted, the authority (IPSA) would be at liberty to adjust/deduct any excess amount if paid to the respondent in making payment against running bills. We are mindful of the fact that during investigation by police usually the Court does not interfere under section 561A of the Code of Criminal Procedure, but in the present case, in view of the facts and circumstances as noticed above, we consider it a fit case to interfere at the stage of police investigation to prevent the abuse of the process of the court and to secure the ends of justice. The State, represented by the Deputy Commissioner, Gazipur vs. Lailun Nahar Ekram (MM. Ruhul Amin J) (Criminal) 4ADC 264

Section 147/148/341/323/307/373/365 and 34

That for an occurrence alleged to have taken place on 21.07.2001 the First Information Report was lodged on 17.06.2002/ 22.06.2002 and though the reason has been given in the First Information Report but in fact the said reason appears to be false. He further submits that during the time of alleged occurrence no political party was in power and a neutral Care Taker Government was in power and as such there was no reason for refusal of the police to register the case. That the accused respondent and others have been absolved of the charge under Sections 3 and 4 of the explosive substances Act. Regarding the allegation of offences under other Sections of the Penal Code, he adds that there are allegations against some other co-accused of assault, abduction and confinement

of the informant but most of them are enjoying bail.

That there was no ground for refusing the bail by the High Court Division and hence the appeal is liable to be dismissed. The State, Represented by the Deputy Commissioner vs. Md. Kamaluddin @ Pichi Kamal and ors (Amirul Kabir Chowdhury J) (Criminal) 4ADC 267

Section 143/326

Section 498 of the Code of Criminal Procedure before the High Court Division praying for bail and the High Court Division after hearing the parties by the impugned judgment and order allowed bail.

Though some explanation has been given in the First Information Report but it cannot be denied that for an occurrence alleged to have taken place on 03.08.2001 First Information Report has been lodged on 20.04.2002/ 05.05.2002. In the First Information Report it appears that allegations of similar kind have been alleged against accused Nos. 2 to 25 and the learned Additional Attorney General could not rebut the contention that some of the aforesaid accused are enjoying bail and it cannot be said that the respondents do not stand on the same footing with those enjoying the privilege of bail. More so it is also not denied that accused No. 1 against whom specific allegation of firing from the pistil has been laid, has been allowed bail. The State, represent by the Deputy Commissioner vs. Md. Kamaluddin @ Pichi Kamal and ors (Amirul Kabir Chowdhury J) (Criminal) 4ADC 268

Section 302/34

Inconsistency in the evidence the order of conviction under Sections 302/34 of the Penal Code has been illegal. In view of the facts and circumstances this contention cannot be brushed aside altogether.

There is no evidence of any conspiracy or pre plan or premeditation on the part of the two appellants nor it could be proved that they inflicted any injuries upon the deceased nevertheless they joined Aynul Sheikh at the time of occurrence. There is however no evidence that the appellants intended to cause the death of the victim. From the facts and circumstances of the case we think that the acts of the two appellants constitute at best an offence of culpable homicide not amounting to murder punishable under Section 304, Part I of the Penal Code. We are, therefore, of the view that ends of justice would be met if the two appellants are convicted thereunder. Aynul Sheikh and another vs. The State represented by the Deputy Commissioner, Faridpur (Amirul Kabir Chowdhury J) (Criminal) 4ADC 354

The Penal Code (XLV of 1860), Section 304, 324.

We have already found that the doctor who held post mortem examination over the deadbody of the deceased found (1) One healed stitched wound (oblique) on front of the right parietal bone measuring 1" in length. (2) Three abreasinon marks on anterior aspect of left shin each measuring W*X ", "X W amd " X W which were healed and scab were formed. In the opinion of the doctor

death of the deceased was due to complications of the above mentioned injuries which were ante-mortem and homicidal in nature. Mashuq Mia @ Iqbal vs The State (M. M. Ruhul Amin J) {Criminal) 3ADC 57

Section 302/201/34

The High Court Division committed error of law in upholding the conviction and sentence of the petitioners of the basis of confessional statement of accused petitioner Zinnah Sheikh but the so-called confession was exculpatory in nature as the prosecution failed to adduce any corroborative witness in support of the so-called confessional statement; it is argued that without corroborative evidence the confession of a co-accused Exhibit-4 cannot be used against other accuseds and as a result there has occasioned serious failure of justice. Mazid Sheikh @ Mazid vs The State (Syed J.R. Mudassir Husain J) (Criminal)3ADC 62

Section 392,411

The learned Advocate for the petitioner could not point out to any tangible material on record to substantiate the submission that petitioner was entitled to be discharged from the charge framed against him. AliAkbor Khan vs The State (Md. Ruhul Amin J) (Criminal) 3ADC 64

Section 302/34

We have already found earlier that the prosecution has been able to prove the presence of the accused appellants in the early morning near a 'Pan Boroj' where there is no locality. So, in all fairness it can be said that the prosecution case has been able to prove the assembly of the accused appellants for murdering the deceased. There is no explanation as to why the accused appellants assemble by the side of a village path way in odd hours of the day. Srwardi Shaikh vs The State (Syed J R Mudassir Husain J) (Criminal) 3ADC 66

Section 328, 420

That the prosecution witnesses having been believed by the learned trial Judge, the High Court Division erred in law in discarding the evidence of the prosecution witnesses for some artificial reasons not warranted by law. The State vs Abul Kalam (Amirul Kabir Chowdhury J) (Criminal) 3ADC 87

Section 302/34

It appears that the learned Judges having properly discussed and considered the prosecution witnesses came to the finding that the petitioner Mostafa inflicted 'Falah' blow on the chest the victim Habibur Rahman with intention to kill him and the victim Habibur Rahman fell down on the ground and died on the spot then and there. Mostafa alias Mosto vs The State (Syed J. R. Mudassir Husain J)(Criminal) 3ADC 179

Section 448/326/307/34, 561A

Whether the High Court Division have committed an error of law resulting in miscarriage of justice in not holding that the proceeding so far as the appellant is concerned is frivolous, vexatious, malafide and groundless and therefore ought to have been quashed and the proceeding being false, concocted, continuation of such pro-

ceeding is abuse of the process of the Court and the Appellant standing on the same footing of co-accused Mr. Mashiuzzaman ought to have been released from the charge leveled against her and the proceeding aganst her ought to have been quashed. Mrs. Novara Schute alias ors. vs The State (Mainur Reza Chowdhury J)(Criminal) 247

Sections 468, 471

Accused petitioner by fraudulent means showed said Marium Bibi being alive and created the 'Heba' Deed on 5-1-1977 in his favour and claimed his ownership of the case land. Abdur Rahman Nazim vs Abdul Rahman Nazim (Syed J. R. Mudassir Husain J)(Criminal) 3ADC 249

Sections 302, 201/34

The right question the High Court Division was required to ask itself was whether the circumstances proved in the case were incapable of any other hypothesis than that of the guilt of the accused and whether the circumstances relied upon by the learned Sessions Judge were conclusive for the inference of guilt of the accused and whether the circumstances relied upon by the learned Sessions Judge were conclusive for the inference of guilt against the accused or not. The State vs Khandker Zillul Bari& Zahirul Alam Kamal (Amirul Kabir Chowdhury J)(Criminal) 3ADC 253

The Penal Code (XLV of 1860) Section 326A

That there being inordinate delay in lodging the F. I. R and there being no evidenced whatsoever of recognition of the accused the Judgment passed by the

High Court Division is not above board. The State vs Moniruzzaman Kazi alias Thanda Kazi (Syed J. R. Mudassir Husain CJ) (Criminal)3ADC 392

Section 148, 302/34, 326

Because the place of occurrence has been shifted and in this respect witnesses have contradicted themselves

....... investigating officer did not seize

any blood stained earth nor any wheat plant to identify the place of occurrence. Habibur Rahman alias Habu vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 398

Section 302/34

Failure of the prosecution to prove the motive as imputed by it will have no impact in the facts and circumstances of the case. Yogashwar Gope vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 400

Section 302

It is not safe to base conviction on retracted confession alone without corroboration in material particulars in support of the guilt of the accused in the instant case and the P.W. 1 Md. Abdur Rahman father of deceased Rubel at the time of lodging First Information Report did not suspect any body in the killing of Rubel and Mantu and P.W.3 Jebunnessa, who deposed in the Court that she found the appellant fleeing away by crossing boundary wall of Rubels house did not make such statement before Investigation. Md. Golam Murtuza @ Isphi vs The state (Syed J. R. Mudassir Husain J)(Criminal) 3ADC 407

State (Amirul Kabir Chowdhury J)(Criminal)3ADC 496

Section 302/34

Dismissing the appeal and consequent thereupon affirmed the judgment and order dated 09-07-1990 passed by the Session Judge.

If at the time of trial, the offender not below the age of 16 years at the time framing charge for trial can be held together with adult and no separate trial is necessary. Mona alias Zillur Rahman vs The State (Abu Sayeed Ahammed J) (Criminal) 3ADC 505

Section 201, 409, 467, 468

Important part of the evidence of such important witness has not been denied nor even there is any cross-examination on that point. There is nothing on record to disbelieve the evidence of witnesses including aforesaid P.W. 1. On perusal of the impugned judgment we find that the trial court as well as the High Court Division considered the evidence on record and pass the impugned judgment and order. Mahbubur Rahman vs The State (Amirul Kabir Chowdhury) (Criminal) 3ADC 578

Section 302/34

............... of evidence given by a Hostile

with A witness even if he is declared hostile, the whole of his evidence affecting the parties, favorably of unfavorably should be considered and that if the evidence of the hostile witness fits in with the attending circumstances it may be accepted and considered along with other evidence. Abdur Rouf Sarder vs The State (Amirul Kabir Chowdhury J)(Criminal) 3ADC 585

Section 420, 448, 506, 56

It has already been settled that exercise of its inherent jurisdiction under section 561A of the Code by the High Court Division can be exercised if it appears that a legal bar against institution or continuance of the proceeding is apparently visible or the complaint, even if accepted in their entirety, do not constitute any offence and if there is no legal evidence. Selim A Khan vs Md. Harun Malik (Amirul Kabir Chowdhury J) (Criminal) 3ADC 587

Section 149, 148, 149, 323, 302, 447

That in case of any Judge of Magistrate or a public servant, nor removable from his office save by order or with the sanction of the Government, being an accused of any offence, while acting in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction of the Government. We like to observe that the two petitioners being members of the Police establishment, they are meant for maintaining law and order in the country. But the offence they committed is a heinous one and as such, in our opinion, they were rightly served by the learned Additional Sessions Judge sentencing them to death and so no lenience ought to have been shown to them. A. S. I. Md. Ayub Ali Sardar vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 663

Section 302/34

There is allegation against the accused respondent who is the principal accused and against others of firing gun shots and thereby murdering the deceased husband of the informant who was a popular Ward Commissioner and thus there is allegation of involvement of the accused respondent in the commission of the said sensational murder of late Ward Commissioner Shaukat Ali and as the case is still being investigated with allegation of threat and tempering with the evidence/witnesses his bail should be cancelled and the ought to remain in custody for securing the ends of justice. Runu Akhter vs Md. Barkat (Boston) (Mohammad Fazlul Karim J) (Criminal) 3ADC 668

Section 395, 397, 412

As the accused had no knowledge that the 13 barrels of oil recovered from his custody were the subject matter of the dacoity and none of dacoits identified the accused to be in dishonest possession of the recovered 13 barrels of stolen oil and that the accused-petitioner has been languishing in jail custody for the last 2 '2 years and having been found guilty under section 412 of the Penal Code, ends of justice would be best. Ali Akbar@ Ali Abkar Dewan vs The state (Mohammad Fazlul Karim J) (Criminal) 3ADC 746

Section 420

We are of the view that as a result of addition of complainant Md. Ismail as party in the Criminal Miscellaneous Case No. 13540 of 2003 as opposite party No. 2 there is no likelihood of accused petitioners being prejudiced as the said Miscellaneous Case pending before the High Court Division will be decided on merit in accordance with law. Zafar Ahmed Chowdhury and others -vs- The state (Syed J.R. Mudassir Husain CJ)(Criminal) 3ADC 751

Section 406, 467, 468, 471,109

That the accused persons in collusion with each other through forgery created records in the name of a false and nonexistent firm. Shabbir Ahmed Chowdhury vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 832

Section 396

It is on record that the accused Mafizuddin was arrested on 22.08.1997 and he was produced before the recording Magistrate on 24.08.1997 and there is no explanation for delay in producing the condemned prisoner Mafizuddin before the recording Magistrate within the specified time. The State vs Mofizuddin and others (M. M. Ruhul Amin J)(Criminal) 3ADC 840

Section 489C, 395, 397

In the FIR there was no allegation that accused had tried in any way to counterfeit or perform any part of the process of counterfeiting or sell or buy or make or perform any part of the process of making or intended to use the counterfeit currency-notes, and the mere possession of counterfeit currency-notes not being made punishable under Section 25A of the Special Powers Act. In law in view of the settled principle of law, that summary disposal of a case, be that in revisional jurisdiction or in other jurisdiction, without hearing the other side is not legally sustainable and appreciable. The State vs. Nur Husain alias Hiron (Md. Ruhul Amin J)(Criminal) 4ADC 85

Section 102B/302/34

While the victim was being teken to the local hospital for treatment, on the way he died on.

Charge-sheet against 15 accused-persons including the leave-petitioners under Section 120 B/302/34 of the Penal Code. Amirul Islam and others vs. The State and another (Syed J.R. Mudassir Husain CJ) (Criminal)4ADC 175

Sectios 420/409/467/468/471/466

The respondent is a registered Private Limited Company of Bangladesh and is an export oriented industry and manufacturer of poly propylene cover bag used in readymade garments factory and poly propylene is a prime raw material of the said industry and the respondent imported the said goods properly and legally for industrial consumption and as such the imported goods being a banned item as alleged can not be said to be banned item rather it is an importable item and any general importer can import it on payment of proper duty and tax. The imported goods arrived at Mongla Port on 09-06-2002 from Indonesia and the respondent presented the bill of entry to the Mongla Customs House for assessment and to release the goods and on completion of physical verification the Customs Authority raised objection that

Bond Licence submitted with the bill of entry is forged but actually the bond licence is an instrument to facilitate the importers to release imported goods without paying any tax. The Solicitor represented by the State vs. Anisuzzaman Chowdhury and other (Syed J.R. Mudassir HusainCJ)(Criminal)4ADC 177

Sections 409/109

In collusion with each other for illegal gain misappropriated Tk. 11,80,615/- by false billing against consultancy service and thereby committed an offence punishable under sections 409/109 of the Penal Code read with section 5(2) of Act II of 1947.

Section 561A of the Code of Criminal Procedure praying for quashing the proceeding and the High Court Division by the impugned judgment and order made the Rule absolute.

That after completion of entire work of the project when the final bill would be submitted, the authority (IPSA) would be at liberty to adjust/deduct any excess amount if paid to the respondent in making payment against running bills. We are mindful of the fact that during investigation by police usually the Court does not interfere under section 561A of the Code of Criminal Procedure, but in the present case, in view of the facts and circumstances as noticed above, we consider it a fit case to interfere at the stage of police investigation to prevent the abuse of the process of the court and to secure the ends of justice. The State, represented by the Deputy Commissioner, Gazipur vs. Lailun Nahar Ekram {MM. Ruhul Amin J) (Criminal) 4ADC 264

Sections 147/148/341/323/307/379/365 and 34

That for an occurrence alleged to have taken place on 21.07.2001 the First Information Report was lodged on 17.06.2002/ 22.06.2002 and though the reason has been given in the First Information Report but in fact the said reason appears to be false. He further submits that during the time of alleged occurrence no political party was in power and a neutral Care Taker Government was in power and as such there was no reason for refusal of the police to register the case. That the accused respondent and others have been absolved of the charge under Sections 3 and 4 of the explosive substances Act. Regarding the allegation of offences under other Sections of the Penal Code, he adds that there are allegations against some other co-accused of assault, abduction and confinement of the informant but most of them are enjoying bail. That there was no ground for refusing the bail by the High Court Division and hence the appeal is liable to be dismissed. The State, Represented by the Deputy Commissioner vs. Md. Kamaluddin @ Pichi Kamal and ors (Amirul Kabir Chowdhury J) (Criminal) 4ADC 267

Sections 143/326

Section 498 of the Code of Criminal Procedure before the High Court Division praying for bail and the High Court Division after hearing the parties by the impugned judgment and order allowed bail.

Though some explanation has been given in the First Information Report but it cannot be denied that for an occurrence alleged to have taken place on 03.08.2001

First Information Report has been lodged on 20.04.2002/ 05.05.2002. In the First Information Report it appears that allegations of similar kind have been alleged against accused Nos. 2 to 25 and the learned Additional Attorney General could not rebut the contention that some of the aforesaid accused are enjoying bail and it cannot be said that the respondents do not stand on the same footing with those enjoying the privilege of bail. More so it is also not denied that accused No. 1 against whom specific allegation of firing from the pistil has been laid, has been allowed bail. The State, represent by the Deputy Commissioner vs. Md. Kamaluddin @ Pichi Kamal and ors (Amirul Kabir Chowdhury J) (Criminal) 4ADC 268

Section 34,148,302,326,448

The law is now settled that mere relationship of the witnesses inter-see or of being related to the deceased does not make them unreliable unless material is brought on record to consider the witnesses of this category is unreliable. The State, represented by the Deputy Commissioner, Chittagong vs. Md. Manzurul Alam (Syed J.R. Mudassir Husain CJ) (Criminal) 4ADC 351

Section 302/34

Inconsistency in the evidence the order of conviction under Sections 302/34 of the Penal Code has been illegal. In view of the facts and circumstances this contention cannot be brushed aside altogether.

There is no evidence of any conspiracy or pre plan or premeditation on the part of the two appellants nor it could be proved that they inflicted any injuries upon the deceased nevertheless they joined Aynul Sheikh at the time of occurrence. There is however no evidence that the appellants intended to cause the death of the victim. From the facts and circumstances of the case we think that the acts of the two appellants constitute at best an offence of culpable homicide not amounting to murder punishable under Section 304, Part I of the Penal Code. We are, therefore, of the view that ends of justice would be met if the two appellants are convicted thereunder. Aynul Sheikh and another vs. The State represented by the Deputy Commissioner, Faridpur (Amirul Kabir Chowdhury J) (Criminal) 4ADC 354

Section 302/34

Making the rule absolute thereby allowing bail to the respondent. The State, represented by the Deputy vs. Kamal Uddin @ Pichchi Kamal (Amirul Kabir Chowdhury J) (Criminal)4ADC 619

Section 302/34

This petition for leave to appeal as well as Jail Appeal Preferred by condemned-prisoner.

It appears that the petitioner raised a plea of alibi but failed to substantiate his claim by landing evidence. It further appears that there is no denial to the fact that the deceased were living in the house of the accused-petitioner (P.O. house) on the date and he (accused-petitioner) ever took any attempt to save the life of the deceased. Paritosh Rudra vs. The State (Md. Hassan Ameen J) (Criminal) 4ADC 702

Section 420,409, 471

Job on the basis of false certificate of B.Com (Pass) Examination of Tularam Government College, Narayangonj and thus practised fraud upon the Government in obtaining the job. The State vs. Md. Humayun Hafiz (Md. Ruhul Amin J) (Criminal) 4ADC 705

Section 302/34

Confessional statements were duly recorded in due compliance with the provisions embodied in section 164 Cr. PC. and does not at all demonstrate that those are not inculpatory and so the Court can rely upon those confessional statements. Md. Foridur Rahman® Forid @ Reza vs. The State (Md. Tafazzul Islam J)(Criminal) 4ADC 715

Section 326/302/109/34

That the instant petition has been filed with oblique motive to delay and drag the disposal of the case as previously also a number of applications have been unsuccessfully filed at the instance of accused persons one after another and that the accused petitioner himself made prayer to transfer the case from the court of Druto Bichar Tribunal, Court No.l alleging bias of the learned Judge and accordingly the High Court Division passed an order. Md. Sahidul @ Sahidul Hossain Hannan vs. The State (Amirul Kabir Chowdhury J) (Criminal 4ADC 794

Section 34.304,302

Accused petitoner along with others assaulted aforesaid Bhabaranjan, calling him a cow lifter as a result of which he died. Abdur Rouf Sarder vs. The State (Amirul Kabir Chowdhury J)(Criminal) 4ADC 800

Section 302

During pendency of the appeal the petitioners moved the High Court Division for bail and the High Court Division by the judgment and order dated 23 August 2005 allowed the prayer for bail. Md. Mainul Islam @ Md. Mainul Islam @ Moinul alias Suja vs. The State (Amirul Kabir Chowdhury J) (Criminal) 4ADC 803

Section 409

The Rule was issued calling upon the opposite parties to show cause as to why the proceeding in Special Tribunal Case No. 9 of 1991 (in fact Special Case No.9 of 1991) under section 409 of the Penal Code read with section 5(2) Act II of 1947 pending before Special Judge, Rajshahi Division (wrongly written as Special Tribunal Judge by the High Court Division) should not be quashed. Md. Khalequl Islam vs. The State (M.M. Ruhul Amin J')(Criminal) 4ADC 805

Section 313/324/326/34

During pendency of the appeal the respondent Md. Alauddin filed an application for bail and he was fugitive from trial for many days during the trial but still was allowed bail by the High Court Division.

Appellate Division after hearing the matter passed an order to stay the order of bail granted by the High Court Division till disposal of criminal appeal before the High Court Division directing the parties to take steps for expeditious disposal of criminal appeal and accordingly the paper books being prepared have been filed and the appeal has been made ready for hearing. Md. Tofeil Ahmed vs. Md. Alauddin and another (Amirul Kabir Chowdhury J) (Criminal) 4ADC 895

Section 148/302/34

Who were assaulted by the dacoits and that out of previous enmity the accused peresons have been implicated in the case falsely.

RW.l Abdul Jalil, though an eye witness was told of the occurrence by the victim at the hospital and accordingly he lodged the First Information Report clearly mentioning the names of the petitioners and others. It appears that the trial court after considering the evidence of eye-witnesses including RWs. 2,3 and 4 passed the impugned judgment and convicted the petitioners.

The High Court Division in its turn found them guilty in consideration of evidence on record. However considering the facts and circumstances of the case the High Court Division took a lenient view and altered the judgment of conviction and reduced the sentence of the petitioners. There is nothing to interfere. Md. AsgarAli alias As gar and others vs. The State (Amirul Kabir Chowdhury J) (Criminal) 4ADC 897

Section 409/109/471/472

Petitioner and others, who are the officers and employees of the Bangladesh Bank, Khulna Branch, in collusion with each other creating four forged bills of the office of Deputy Director Agriculture Extension Department, Khulna and also creating forged advice withdrew Tk. 7,25,400/- on 2.8.1992 from the said Bangladesh Bank Enamul Hoque Mollah vs. The State as represented by the Deputy Commissione (Md. Tafazzul Islam J) (Criminal)4ADC 972

Section 409/109/472

In collusion with each other creating four forged bills of the office of Deputy Director Agriculture Extension Department, Khulna and also creating forged advices. Mirza Saifuddin Hasan vs. The State (Md. Tafazzul Islam J) (Criminal) 4ADC 977

Section 302/324/326/448/34

It appears that the High Court Division as well as this Court elaborately considered the points raised now by the learned Counsel and accordingly decided the case. A review is never meant to rehear a matter which has been heard and decided finally. Yogashwar Gope vs.The State (Amirul Kabir Chowdhury J) (Criminal) 4ADC 982

Section 396

Dacoity was committed in the house of the informant

In course of dacoity the informant, P.W. 1, recognized some dacoits . The police thereafter took up investigation, visited the place of occurrence, prepared the sketch map with separate index, examined witnesses and recorded their statement under section 161 of the Code of Criminal Procedure. Saiful Islam Shaikh vs. The State, represented by the Deputy Commissioner,

Gopalgonj (Md. Joynul Abedin J) (Criminal) 4ADC 984

Section 364/302/301/34

The petitioner was tried on the charge of kidnapping one Raisuddin uncle of informant Abu Taher on 10.09.1991 and thereafter murdering him and causing disappearance of evidence by concealing the dead body. Army Habilder Abdul Gafur vs. The State (Amirul Kabir Chowdhury J) (Criminal)4ADC 988

Section 409/420/109

Discharging the Rules and common questions of law being involved in all these petitions, the same are disposed of by this judgment. Abdul Huque vs. The State (MD. Tafazzul Islam J) (Criminal) 4ADC 1004

Citation: 3ADC 303, 4ADC 735

Subject: Petroleum

Delivery Date: 2018-11-27

The Petroleum Rule, 1937.

The plaintiffs failed to prove and show any valid licence at the relevant time and in view of the fact that the Master, at the age of 75 years at the relevant time, was driving the vessel M. V. Tapash, it can not be conclusively and doubtlessly held that accident took place due to negligence and carelessness of the Master of the vessel M. V. Shainpukur-1 "Chalna Carriers ors. vs M/S. Shainpukur Navigation Ltd. (Md. Ruhul Amin J)(Civil) 3ADC 303

The Petrolium Rule, 1937 Rule 13

The positive case of the defendants is that the collision took place and the passenger launch suffered heavy damage due to negligence and carelessness of the Master of M.V. Tapash and that the night was dark and the collision took place at 3.30 A.M. since M.V. Tapash was proceeding violating the Marine Rules and Regulations. Chalna Carriers and Fibres Ltd. vs. M/S. Shainpukur Navigation Ltd. (Md. Ruhul Amin J)(Civil) 4ADC 735

Citation: 4ADC 735

Subject: Pilot's Ordinance

Delivery Date: 2018-11-27

The Pilot's Ordinance, 1969 Section 3, 36

The positive case of the defendants is that the collision took place and the passenger launch suffered heavy damage due to negligence and carelessness of the Master of M.V. Tapash and that the night was dark and the collision took place at 3.30 A.M. since M.V. Tapash was proceeding violating the Marine Rules and Regulations. Chalna Carriers and Fibres Ltd. vs. M/S. Shainpukur Navigation Ltd. (Md. Ruhul Amin J)(Civil) 4ADC 735

Citation: 3ADC 663

Subject: Police Officers

Delivery Date: 2018-12-03

The Police Officers (Special Provisions) Ordinance, 1976 Section 2,4,5

That in case of any Judge op Magistrate or a public servant, nor removable from his office save by order or with the sanction of the Government, being an accused of any offence, while acting in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction of the Government. We like to observe that the two petitioners being members of the Police establishment, they are meant for maintaining law and order in the country. But the offence they committed is a heinous one and as such, in our opinion, they were rightly served by the learned Additional Sessions Judge sentencing them to death and so no lenience ought to have been shown to them. A. S. I. Md. Ayub Ali Sardar vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 663

Citation: 45 DLR (AD) 106, 5ADC 789

Subject: Police Regulation

Delivery Date: 2018-11-27

The Police Regulation, No. 856, 859.

The tribunal cannot grant gratuitous relief and if such a relief is granted the same should be construed as relief granted in excess of jurisdiction. The Administrative Tribunal Act has not provided for any such authority to the Tribunal to give such a relief as has been given to the authority in the present case before us. Quazi Nazrul Islam Vs. Bangladesh House Building Finance Corporation 45 DLR (AD) 106. Affairs, Bangladesh Secretariat, Ramna, Dhaka & Md. Anwarul Islam vs BRSMH

(Mahmudul Amin Choudhury C J) (Civil) J ADC 390 favour of the plaintiff and his brothers. Md. Nasiruddin vs. Md. Mizanur Rahman (Mohammad Faziul Karim J) (Civil) 5ADC 789

Citation: 2ADC 964, 4ADC 458, 4ADC 465, 4ADC 469, 3ADC 812, 3ADC 632

Subject: Premises Rent Control

Delivery Date: 2018-11-27

The Premises Control Act, Section 19

Petitioner praying for ejectment of the defendant from the suit premises alleging, inter alia, that the Plaintiff's father, Md. Yakub Ali Sarder, was the owner of the suit premises and the defendant was inducted as a monthly tenant therein and the said Md. Yakub Ali Sarder transferred the suit land by a registered deed of heba-bil-ewaj dated 06.09.1988 in

The Premises Rent Control Ordinance, (XX of 1963), Section 19.

Although the scope of exercising revi-sional jurisdiction under Section 25 of the Small Cause Court Act is wider than under Section 115 of the Code of Civil Procedure, yet before interfering with any finding of fact of the trial court under section 25 of the said Act the High Court Division is to come to finding that such finding of the trial Court suffers from any error of law and for such error the decision of the trial court

has been........ (6). Md. Nurul Islam vs

Md. Ali Hossain Miah. ors (Mohammad Abdur Rouf J) (Civil) 2ADC 964

The Premises Rent Control Ordinance, 1963 Section 18,18(2)

That a person continuing in possession after termination of a tenancy in his favour is also a tenant. It is on record that after the expiry of the period of lease the tenant is continuing in possession and is paying rent in the House Rent Control Case No. 367 of 1984 regularly. In that view of the matter, defendant is a tenant under the Premises Rent Control Ordinance and in that sense he is a statutory tenant. Rent Control legislation is a special law which gives a greater protection to a tenant against eviction so long he pays rent to the full extent allowable by this ordinance and perform the conditions of the tenancy. Abdul Aziz vs. Md. Abdul Majid (Latifur Rahman J)(Civil) 4ADC 458

Present case no contract for lease was executed creating right in favour of the petitioner and therefore, a preliminary decision taken previously having no consistency with the Rule can be rectified by the same authority and therefore, the prior decision in question, does not come under the concept of promissory Estoppel as a competent authority is empowered to modify its own decision which is found inconsistent with the Rules and policy to be persuaded in the matter of leasing out Jalmahal. The petitioner cannot invoke writ jurisdiction challenging the above impugned letter by which no disciplinary action has been taken and there is also a forum to seek remedy, if any, against the action taken by the appropriate authority for the alleged illegal act. Towhid Fishermen Co-operative Society Limited vs. Additional Deputy Commissioner (Md. Tafazzul Islam J) (Civil) 4ADC 465

Specific performance of contract in respect of a deed of reconveyance ....(2) With an oral agreement to reconvey the same to him on refund of the consideration money of Tk. 14,000/- ....(2) In view of entries in the written document any evidence contrary thereto cannot be legally acceptable under the provision of Sections 91/92 of the Evidence Act. Moreso it appears that except RW.2 Abdus Salam, brother of the plaintiffs, they could not produce any other neutral witness to support the claim of oral contract of the defendant No. 1 to convey the suit property. Md. Shamsur Rahman @ Labul and others vs. Md. SadekAli @ Lessua Mia (Amirul Kabir Chowdhury J) (Civil) 4ADC 469

The Premises Rent Control Ordinance, 1963, Sections 18 and 19

Make payment of rent not to the Abandoned Property Cell but to the plaintiff. There is also no evidence on record that before 17-2-82 any official communication was addressed to the appellant informing him of the release of the suit building in favour of the plaintiff-respondent. In such a special situation, which is unique in nature, we find that the appellant had sent 3 months' rent by postal money order to the plaintiff on coming to know that the suit bulding has been released in his favour. We also find that on the plaintiffs refusal to accept the money order the appellant deposited 4 months' rent upto February 1982 by chalan to the Abandoned Property Authority. There was neither any mala fide nor any intentional desire to deprive the plaintiff from his claim of rent. Monzur Murshed vs Humayun Majid (Mustafa Kamal J) (Civil) 3ADC 812

The Pre-emption was allowed

The pre-emptor forcibly took possession of the suit land alleging that the land was vacant and they entered into possession. The pre-emptor without any order from the court took possession of the suit land by dispossessing the appellant while the appeal was pending. Furthermore, the appellant prayed for stay of operation of the impugned judgment and order and considering these facts the High Court Division made the rule absolute and directed the pre-emp-tor to hand over possession to the pre-emptee within 15 days failing which the trial court was directed to restore possession of the pre-emptee. Jamuna Knitting vs Messers Yunusco (M. A. Aziz. J) (Civil) 3ADC 632

THE PREVENTION OF CORRUPTION ACT, 1947

(ACT NO. II OF 1947)

[11th March, 1947]

An Act for the more effective prevention of bribery and corruption. 1

WHEREAS it is expedient to make more effective provision for the prevention of bribery and corruption;

It is hereby enacted as follows:-

Short title and extent

1. (1) This Act may be called the Prevention of Corruption Act, 1947.

(2) It extends to the whole of Bangladesh and applies to all citizens of Bangladesh and persons in the service of 2[ the Republic] wherever they may be.

Interpretation

2. For the purposes of this Act, “public servant” means a public servant as defined in section 21 of the Penal Code and includes an employee of any corporation or other body or organisation set by the Government and includes a Chairman, Vice-Chairman, Member, Officer or other employee of a local 3[ authority], or a Chairman, Director, Managing Director, Trustee, Member, Officer or other employee of any corporation, or other body or organisation constituted or established under any law.

Offences under sections 161 and 165 of the Penal Code to be cognizable offences

3. An offence punishable under section 161, 162, 163, 164, 165 or 165-A of the Penal Code shall be deemed to be a cognizable offence for the purposes of the Code of Criminal Procedure, 1898, notwithstanding anything to the contrary contained therein.

Presumption where public servant accepts gratification other than legal remuneration

4. (1) Where in any trial of an offence punishable under section 161 or section 165 of the Penal Code, it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(2) Where in any trial of an offence punishable under section 165A of the Penal Code it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by any accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 161 of the said Code, or, as the case may be, without consideration or for a consideration which he knew to be inadequate.

(3) Notwithstanding anything contained in sub-sections (1) and (2), the Court may decline to draw the presumption referred to in either of the said sub-sections if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn.

Criminal misconduct

5. (1) A public servant is said to commit the offence of criminal misconduct-

(a) if he accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Penal Code, or

(b) if he accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or

(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains or attempts to obtain for himself or for any other person any valuable thing or pecuniary advantage, or

(e) if he, or any of his dependents, is in possession, for which the public servant cannot reasonably account, of pecuniary resources or of property disproportionate to his known sources of income.

Explanation.- In this clause “dependent” in relation to a public servant, means his wife, children and step-children, parents, sisters and minor brothers residing with and wholly dependent on him.

(2) Any public servant who commits or attempts to commit criminal misconduct shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or 4[ with both, and the pecuniary resources or property to which the criminal misconduct relates may also be confiscated to the State].

(3) In any trial of an offence punishable under sub-section (2) the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the Court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct and his conviction therefore shall not be invalid by reason only that it is based solely on such presumption.

(4) The provisions of this section shall be in addition to, and not in derogation of, any other law for the time being in force, and nothing contained herein shall exempt any public servant from any proceeding which might, apart from this section, be instituted against him.

5[ 5A. Notwithstanding anything contained in the Code of Criminal Procedure, 1898 no officer below the rank of Inspector of Police shall investigate any offence punishable under any of the sections of the Penal Code mentioned in section 3 or any offence punishable under section 5 without an order of a Magistrate of the first class or make any arrest therefore without a warrant.]

6[Omitted]

6. [Previous sanction necessary for prosecution.- Omitted by section 5 of the Criminal Law Amendment Act, 1953 (Act No. XXXVII of 1953).]

Accused person to be competent witness

7. Any person charged with an offence punishable under section 161 or section 165 of the Penal Code or under sub-section (2) of section 5 of this Act shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial:

Provided that -

(a) he shall not be called as a witness except on his own request,

(b) his failure to give evidence shall not be made the subject of any comment by the prosecution or give rise to any presumption against himself or any person charged together with him at the same trial,

(c) he shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of any offence other than the offence with which he is charged, or is of bad character, unless-

(i) the proof that he has committed or been convicted of such offence is admissible evidence to show that he is guilty of the offence with which he is charged, or

(ii) he has personally or by his pleader asked questions of any witness for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of any witness for the prosecution, or

(iii) he has given evidence against any other person charged with the same offence.

________________________________________

1 Throughout this Act, the words “Bangladesh”, “Government” and “Penal Code” were substituted for the words “Pakistan”, “Central Government” and “Pakistan Penal Code” respectively by section 3 and the Second Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)

2 The words “the Republic” were substituted for the word “Government” by section 3 and the Second Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)

3 The word “authority” was substituted for the words, commas and figures “council as defined in the Basic Democracies Order, 1959, or of a Municipal Committee” by section 3 and the Second Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)

4 The words “with both, and the pecuniary resources or property to which the criminal misconduct relates may also be confiscated to the State” were substituted for the words “with both” by section 2 of the Prevention of Corruption (Amendment) Act, 1992 (Act No. VIII of 1992)

5 Section 5A was inserted by section 5 of the Criminal Law Amendment Act, 1953 (Act No. XXXVII of 1953)

Source : Ministry of Law, Justice and Parliamentary Affairs

Citation: 3ADC 591

Subject: Printing Presses and Publications

Delivery Date: 2018-11-27

The Printing Presses and Publications (Declaration and Registration) Act (XXIII of 1973), Section 7, 12A(3)

Sub-article (3) of Article 147 of the Constitution has created a bar for the persons appointed to or acting in the offices specified in Sub-article(4). But the provision to Sub-Article(3) with a deeming clause has excluded the bar created by Sub-article(3). Therefore, such person shall not be debarred from retaining his former office, post or position of profit or emolument. So, Mr. Anwar Hossain did not lost his office as Executive Director—II in Ittefaq Group of Publications Ltd. and also his office, post or position as the printer, publisher and editor of the daily Ittefaq after he was appointed a Minister in the cabinet of General H. M. Ershad and also during the coalition Government of the Awami League Anwar Hossain vs Mainul Hossain (M. M. Ruhul Amin J) (Civil) 3ADC 591

Citation: 4ADC 451, 1ADC 497, 2ADC 546, 2ADC36, 3ADC 452

Subject: Private Forests

Delivery Date: 2018-11-27

The Private Forests Act, 1945,1972, Sections 7 and 11

For a declaration that the suit land measuring 4.75 acres of land is comprised of a mango garden having 74 mango trees standing thereon is not a forest land and as such the vesting of control and management thereof in the Forest Department are illegal and inoperative and not binding on the plaintiffs and the plaintiffs are entitled to reversion of the same free from control and management of the Forest Department on the following allegations. Government of Bangladesh represented by the Secretary Ministry vs. Md. Ayub All and another (Md. Joynul Abedin J) (Civil) 4ADC 451

The Private University Act 1992 Section 3, 7(b)

Application filed by the respondent has not yet been rejected by the authority. It appears that by the impugned letter, the respondent is directed to comply with the requirement of amended section 7(d), by depositing Tk. S crores in place of Tk. 1 crore, to get a license. The respondent could have approached the appropriate authority to agitate its grievance before it and wait for its reply. BSMEPR, Secretariat Building Police Station -Ramna, Dhaka vsNorth Point University (KM. Hasan, J (Civil) 1ADC 497

A Probated cannot be granted on compromise, if objected .

Although there is a will but unless and until it is proved in accordance with law, on the face of objection raised by any interested party (herein the appellant), a Probate cannot be granted on compromise and it is not permitted by law. Kanai Lai Roy vs Swaraswati Roy alias Srimati Swaraswati Roy (Md. Ruhul Amin J)(Civil) 2ADC 546

Probate and letter of Administration upon a wil

The possession of the bequeathed property having remained with the legatee it can be safely said that the will was acted upon. Government also could not show any law as to limitation of filing a case for issuance probate and letter of administration upon a will. Therefore, delay in filing the suit cannot be a material factor and illegality in granting probate and letter of administration. Govt, of Bangladesh vs Sree Sudhir Kumar Chakraborty (Abu Sayeed Ahammed J)(Civil) 2ADC36

Probidhan 50 of Trading Corporation of Bangladesh

The employees of the TCB have beenreleased from their services on the ground that their services were no longer required for the organization this was a policy decision of the Government taken on the
basis of recommendation. Bangladesh vs Md. Abdul Halim Bhuiyan (31). (M.M. Ruhul Amin J)(Civil) 3ADC 452

Citation: 5ADC 214, 5ADC 636, 3ADC 688, 3ADC 345, 4ADC 631, 3ADC 476

Subject: Emergency Requisition

Delivery Date: 2018-11-27

The provision .of Emergency Requisition of Property Act, 1948, Section 8 (1)

To de-requisition the house in question in the light of the provision of Section 8(1) of the Emergency Requisition of Property Act, 1948. The Government of the People's Republic of Bangladesh vs. Kopil Das (Md. Ruhul Amin J) (Civil ) 5ADC 214

Respondent's appoint to the said post of Stenographer was not made upon due compliance of the provision of Local Government (Zilla Parishad) Officers and Employees Service Rules, 1990. Secretary, Zilla Parishad ,Faridpur vs. Md. Lutfur Rahman (Md. Ruhul Amin J) (Civil) 5ADC 636

The provision of Section 25(l)(a) of the Employment of Labour (Standing Orders) Act, 1965, 25(l)(a)

Submission of the grievance must necessarily be made by registered post, provided of course that there is material to prove that such grievance in writing has in fact been submitted within the time as specified. In case of admitted service of grievance petition within the specified time, the formality of sending the same by registered post should not hinder the process in substance. Bangladesh Road Transport Corporation vs Md. Esken Mollick and another (M.Fazlul Karim)(Civil) 3ADC 688

Provision of Rule 7(2) of the Government Servants (Discipline and Appeal) Rules, 1985.

Writ petitioner respondent was discharging the duties as a Magistrate being delegated the power under Ordinance of 1965 and that he was in fact exercising the power of the Government and that the proceeding initiated against him on the face of it being malafide and without jurisdiction he had to take shelter of the writ jurisdiction of the High Court

The Public Demands Recovery Act (PDR Act) Section 37, 48, 49. Division, according to the learned

Counsel, the proceeding being malafide, illegally started against the respondent further continuation of the same is contrary to law and as such the proceeding required to be stayed but the Administrative Tribunal having no jurisdiction to stay even such a malafide proceeding, the respondent had no other efficacious remedy available to him for redressing his grievance and thus which is grated filed the writ petition. Bangladesh, BTTB vs Mohammad Toufique (Amirul Kabir Chowdhury J) (Civil) 3ADC 345

The proviso to the first paragraph of Regulation 4 of the Alluvion and Diluvion Regulation XI of 1825.

Averments having been made in the plaint alleging fraud and malafide and that in the light thereof relief having been sought civil court is quite competent to investigate the question of fraud and malafide and the said allegation as can only finally adjudicate upon full dress hearing of he suit, the High Court Division was in error in rejecting the plaint upon an erroneous view that the suit is barred under section 37 of the Seeking declaration of title in respect of 2.95 acres of land and khas possession in respect of 4 decimals of land. M. A. Hashem and others vs. Shafiuddin Ahmed and others (Md. Ruhul Amin J) (Civil) 4ADC 631

PDR Act. Md. Marfat Ali Miah vs Sree Jagadish Chandra Sheel (Md. Ruhul Amin J)(Civil) 3ADC 476

Citation: 2ADC 607, I ADC 192, 5ADC 611, 2ADC 921

Subject: Public Servants

Delivery Date: 2018-11-27

The Public Servants Ordinance, (Ordinance No. V of 1985), Section 2, 3(1) (3), 5.

In the instant case the order of dismissal has not been called in question in any court and it has not been declared void, although the conviction of the respondent has been set aside resulting in his acquittal. Therefore, the respondent is not entitled to reinstatement on the ground of his acquittal in accordance with BADC Disciplinary Case Procedures, 1977. BADC vs Abdur Razzaque(Bimalendu Bikash Roy Choudhury J)(Civil) 2ADC 607

Public Servants (Dismissal on Conviction) Ordinance 1985. Section 3.

Aggrieved person may come for relief under the writ jurisdiction although there is an alternative forum available for redress. The Chairman vs Md. Sakhawat Hossain (Md. Ruhul Amin J) (Civil) I ADC 192

Declaring that confication of the vessel as well as imposing of penalty on the writ petitioners and each of the members of the crew are illegal and without lawful authority. The Government of the People's vs. Horng Woei Industrial Co. (Md. Tafazzul Islam J) (Civil) 5ADC 611

5(Kha) of the pension and General Provident Fund Rules, 1987 had no authority and power to retire him prematurely from the service.Cap. (Ret.) B. Akram Ahmed Khan Chowdhury (I) vs Bangladesh (1) (M. M. Ruhul Amin J)(Civil) 2ADC 921

Citation: 2ADC 503, 4ADC 329, 4ADC 31, 3ADC 484, 2ADC 500

Subject: Public Servants

Delivery Date: 2018-11-27

The Public Servants (Retirement) Act, 1974, Section 3

The High Court Division cannot, grant the prayer of petition by giving substantial part of the relief while adjudication of the substantive matter is still awaiting. Chairman, BADC vs S.M. Ali Imam (Md.Ruhul Amin J)(Civil) 2ADC 503

The Public Servants (Retirement) Act, 1974, Section 9(1)

Did not allow the plaintiff the benefit of leave preparatory to retirement and thus caused him a financial loss to the tune of about Tk.50 lakhs.

High Court Division committed an illegality in withdrawing the suit from the trial Court to the High Court Division without assigning any reason, without following the requirements of law and without so much as giving an opportunity to the learned Advocate for the appellants to place the appellants' point of view thus causing great prejudice to the appellants. Government of Bangladesh and another vs. Md. Raziur Rahman Chowdhury (Mustafa Kamal J) (Civil) 4ADC 329

Public Servants (Retirement) Act, 1974, Section 9(2), 2(d), 2(d)(i) & (vi)

Considering the overriding nature of section 3 of the Act it can be very well said that whatever be the provision of any regulation or bye-law, the Regulations under which the writ petitioners seek cover will not prevail if it is inconsistent with the Act. Bangladesh Biman Corporation vs. Md. Zainul Abedin and ors. (Bimalendu Bikash Roy Choudury J) (Civil) 4ADC 31

Question of the legality of a kabla.

On a perusal of the High Court Judgment we find that the said Division was completely oblivious of the fact, that with the concurrent finding arrived at by the trial Court as well as by the court of appeal below which is the final court of facts by threadbare discussions of the evidence of P.Ws and perusal of pleadings cannot be interfered with by the High Court Division unless the judgment is corum-non-judice, perverse. Md. Abdul Jalil vs Mosammat Shefali Begum (M. A. Aziz J)(Civil) 3ADC 484

Refund of benefits

It is a settled law that even if an incumbent after the termination of his service engages himself in any other service or business transaction, then any amount that he might earn by way of salary from such service or as profits of such business may be set off against his salary due on his reinstatement in the service. Bangladesh vs Rakibuddin Ahmed (Bimalendu Bikash Roy Choudhury J)(Civil) 2ADC 500

Citation: 4ADC 77

Subject: Railways

Delivery Date: 2018-12-03

Goods train was shunting at the Singia railway Station, resulting in casualties of death and causing injuries to a number of persons and the matter being thus informed a First Information Report was registered on the basis of which Khulna

GRPS Case No. 2 of 1997 was started under Section 304A of the Penal Code read with section 101 of the Railways Act.

Railway line from the outer signal towards the home signal was curve like half moon and by the side of the rail line there were many tress and unauthorised house and because of this condition one cannot see the home signal and the adjacent area from the outer signal. So it appears that at the place of occurrence at the relevant time there was line clearance signal for entering into through the railway line and the accused appellants Ali Ahmed, train driver and Shahaidul Islam assistant driver cum fireman could not see the derailed position of the engine of the goods train while the aforesaid 23 UP rocket mail train was passing through the outer signal and approaching towards the home signal." The State vs. Ali Ahmed and another (Amirul Kabir Chowdhury J) (Criminal) 4ADC 77

Citation: 3ADC 263, I ADC 462, 3ADC 370, 2ADC 349, I ADC 552, 4ADC 967, 4ADC 721, 4ADC 732, I ADC 337

Subject: Registration

Delivery Date: 2018-11-27

The Registration Act 1973 Section 60.

The co-sharer of the holding land of which sought to be pre-empted and as such the prayer for pre-emption. Fatema Khatun ors. vs Abdul Quddus (Md. Ruhul Amin J)(Civil 3ADC 263

Section 28

The court to compare and scrutinize the disputed signatures with the admitted signatures under provision of section 73 of the Evidence Act but the appellate Court has fallen in an error in holding that such comparison of the disputed signatures by the court along with the admitted signatures is not always save. It was the duty of the defendant to get the same proved otherwise by obtaining an opinion of the hand writing expert. Ami Miah vs Gauranga Chandra Sharma (Sved J. R. Mudassir Husain. J) (Civil) I ADC 462

Section 60

Provides that sale would be complete even if the consideration money is not paid or is part paid or part promised. In the case of non-payment of full consideration money or part consideration, the vendor may sue the vendee for recovery of the consideration money. Satish Chandra Mondal vs Ayjuddin Gazi ors. (M. M. Ruhul Amin J)(Civil) 3ADC 370

Section38(2)

The trial court's finding that the disputed Kabala was not a genuine one had not been reversed by any of the courts below and therefore the consideration which of the two documents the heba-bil-ewaj in favour of the plaintiffs or the Kabala in favour of the defendants was earlier in point of time is out of place. Vickchand Miah vs Khurshida Khatun (Bimalendu Bikash Roy Choudhury J)(Civil) 2ADC 349

Section 60

That the pre-emptor is a co-sharer by purchase and the pre-emptees are stranger purchasers and the pre-emption case was

well within time and the case was not bad for defect of party. Shamsul Hoque vs Mosamniat Arnina Khatun & ors. (MM. RuhulAmin J)(Civil) I ADC 552

The Registration Act, Section 47

The suit was filed seeking declaration that the judgment and order dated June 29, 1987 passed in Miscellaneous Case (pre-emption) No. 6 of 1984 of the Court of Assistant Judge, Nangalkot was fraudulent and as such liable to be set aside. Serajul Hoque Majumder vs. Bachchu Mia Mojumder (Md. Ruhul Amin J')(Civil) 4ADC 967

Section 28(2), 30(2)

The claim of the respondents for mutation of their names has no legal basis and respondents are at first required to establish their right title and interest over the property in question in a competent court of law before praying for direction for mutation of their names and writ court is not the proper forum for deciding such question of title and accordingly the High Court Division acted beyond its jurisdiction in making the Rule absolute. Rupali Bank Ltd. & Govt. etc. vs Shawkat Ara Salauddin (Md. Tafazzul Islam J) (Civil) 2AD 1

The Registration Act, Section 60

The High Court Division made the Rule absolute on the finding that "right of pre-emption can not be defeated by a person who was not a co-sharer on the date of the transfer but subsequently alleged to have become a co-sharer "

Fatema Khatun Being dead her heirs vs. Abdul Quddus (Md. Ruhul Amin J) (Civil) 4ADC 721

Having felt aggrieved by the order of the Additional Commissioner Rajshahi, the plaintiffs filed Other Class Suit No. 109 of 1982 in the Court of Munsif, 2nd Court, Pabna for a declaration that the judgment and order of the Additional Commissioner is illegal, void and not binding upon them. Md. Abdul Jalil vs. Mosammat Shefali Begum and others (M.A. Aziz J) (Civil) 4ADC 732

Section 28(2), 30(2)

The respondents, without title, was not entitled to pray for a writ of mandamus for directing the Ministry of Works to mutate their names in the records. Rupali Bank Ltd.& Bangladesh vs Shawkat Ara Salauddin (Md. Tafazzul islam J)(Civil) I ADC 337

Citation: 4ADC 385, 4ADC 150, 2 ADC 175

Subject: representation of the People's Order

Delivery Date: 2018-11-28

The representation of the People's Order, 1972, Rule 9(1) Article 20(1), 91(b)

That the Acting Chief Election Commissioner had acted corum non judice in exercising his power in this particular case. The learned Judges of the High Court Division unnecessarily wrote a long judgment without touching on the vital issue raised in the present case before it.

Since we are holding that the order of Acting Chief Election Commissioner is corum non judice it is needless for us to go into the question as to whether the action of the Acting Chief Election Commissioner was a quasi-judicial one or one in his administrative capacity. Jatiya Party vs. Election Commission for Bangladesh and others (Latifur Rahman CJ)(Civil) 4ADC 385

The Representation of the People Order 1972, Article 49

Election Petition No.2 of 2001 allowing partly an application filed by the Election Petitioner directing the Returning Officer and Deputy Commissioner, Kishoregonj to send the documents detailed in the schedule of the application.

Praying for a declaration that the election of the returned candidate i.e. present appellant is void and for a declaration that the election petitioner respondent No. 1 has been duly elected as member of the Parliament of the 8th Jatiya Sangsad Election from 165, Kishoregonj-1, constituency and for other reliefs alleging.

Recounting the ballot papers at this stage. It has been emphatically argued that the inspection of the documents called for shall indicate clearly that the ballot papers contained in the bag reflect that the provision of Article 31 of the Order has been violated due to the illegal entry of outsiders, snatching away of the ballot papers from the polling staff, stamping the symbol of boat by the unruly elements and stuffing the same in the Ballot paper Box and to appreciate the submission the respondent prays for its inspection. In such view the decisions cited on behalf of the appellant are of no benefit to him. The packets inside the gunny bag should be scrutinized carefully and strictly and in the fitness of things examination of the Presiding Officer of concerning polling staffs may be indispensably necessary to ascertain as to whether the packets and contents inside the packets are intact and would unerringly show that the ballot papers, the counterfoils of the issued ballot papers and the marked copies of the electoral rolls were not tempered with by some malicious hands meanwhile in order to create evidence/ground for undoing the election. Dr. Alauddin Ahmed vs. Md. Idris Ali Bhuiyan and others (Amirul Kabir Chowdhury J)(Civil) 4ADC 150

The Representation of Peoples Order, 1972

Barnard and others Vs. National Dock Labour Board and another, 1953(1) All England Law Reports 1113.Vine Vs National Dock Labour Board, 1956(3)A11 England Law Reports 939. Allingham and another Vs. Minister of Agriculture and Fisheries, 1948(1) All England Law Reports 780. Jamal Shaha, 18 DLR(SC) 1.

On a careful consideration of the law on the subject we are of the view that the Acting Chief Election Commissioner had acted Coram non judice in exercising his power in this particular case. Jatiya Party vs Election Commission for Bangladesh (Latifur Rahman C J)(Civil) 2 ADC 175

Citation: 5ADC 361, 4ADC 476, 4ADC 478, 2ADC 38

Subject: Rules of Procedure

Delivery Date: 2018-11-28

The Rules of Procedure Act, 1992

Show cause as to under authority of law
they are abstaining from attending the
parliament and why they should not be
directed to attend the Sessions of the
parliament Of the people's Republic of
Bangladesh, and perform their constitu-
tional duties and obligations.................... (5)

Moudud Ahmed and others vs. Md. Anawer Hossain Khan (Dead) (Md. Ruhul Amin CJ)(Civil) 5ADC 361

Rule 3(Ka)(Kha)(Ga) and (Gha) of the VAT rule

The Petitioner made a prayer for stay of operation of arbitrary deduction of value approved by respondent Respondent did not give any opportunity to the petitioner to show cause against the allegation and the writ petitioner was constrained to file the above writ petition and obtained a rule nisi and interim order, that the order dated 15.12.2003 passed by respondent No.3 making adjustment in the current account registrar of the petitioner company by deducting Tk. 71,17,344.00 from the said registrar (Annexures-F & Fl) be stayed for 3 (three) months. The order of stay was subsequently extended by order dated 5.5.2004 for a period of 6 (six) months. National Board of Revenue vs. M/s. Anwar Cement Ltd (M.A.Aziz J)(Civil) 4ADC 476

For that the High Court Division without considering and discussing at length the question of law and facts came to an erro neous finding that appointment of Md. Abdul Motaleb as marriage registrar is not sustainable by law and as such the petitioner was highly aggrieved for no fault of him which ought to have been considered by the High Court Division and the High Court Division also failed to consider that as a result of the Judgment of the High Court Division it did not retain for him any ward at all and as such the impugned judgment and order are liable to be set aside for ends of justice. Md. Abdul Motaleb vs. Md. Rafiqul Alam & ors (Amirul Kabir Chowdhury J)(Civil) 4ADC 478

Rescission of Contract.

That the appellant was inducted into possession by the respondent in pursuance of the contract and as the appellant is willing to perform his part of the contract, the respondent cannot rescind the contract and the appellant is entitled to get a decree for specific performance of contract. Amir Hossain vs Md. Amir Ali (Md. Hamidul Haque J) (Civil) 2ADC 38

THE RURAL ELECTRIFICATION BOARD ORDINANCE, 1977

(ORDINANCE NO. LI OF 1977).

[31st October, 1977]

An Ordinance to provide for the establishment of the Rural Electrification Board.

WHEREAS it is expedient to provide for the establishment of a Board for rural electrification in Bangladesh and taking measures for effective use of electrical power for development of the rural economy of the country;

NOW, THEREFORE, in pursuance of the Proclamations of the 20th August, 1975, and 8th November, 1975, and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance:-

Short title

1. This Ordinance may be called the Rural Electrification Board Ordinance, 1977.

Definitions

2. In this Ordinance, unless there is anything repugnant in the subject or context,-

(a) “Board” means the Rural Electrification Board established under section 3;

(b) “Chairman” means the Chairman of the Board;

(c) “member” means a member of the Board and includes the Chairman;

(d) “prescribed” means prescribed by rules made under this Ordinance;

1[ (e) “rural area” means an area which is not included within a municipality and includes such a municipality or an area within a municipality as the Government may, by notification in the official Gazette, specify in this behalf;]

(f) “Samity” means a Palli Bidyut Samity formed under this Ordinance and registered with the Board.

Establishment of the Board

3. (1) As soon as may be after the commencement of this Ordinance, the Government shall, by notification in the official Gazette, establish a Board to be called the Rural Electrification Board for carrying out the purposes of this Ordinance.

(2) The Board shall be a body corporate having perpetual succession and a common seal, with power, subject to the provisions of this Ordinance and the rules made thereunder, to acquire, hold and dispose of property, both movable and immovable, and shall by the said name sue and be sued.

Head Office, etc

4. (1) The head office of the Board shall be at Dacca.

(2) The Board may establish offices at such other places as it deems fit.

Composition of the Board

5. (1) The Board shall consist of the following members, namely:-

(a) a Chairman to be appointed by the Government;

(b) 2[ four] whole-time members to be appointed by the Government;

(c) one part-time member to represent the Bangladesh Power Development Board to be nominated by that Board;

(d) one part-time member to represent the Bangladesh Agricultural Development Corporation to be nominated by that Corporation;

(e) one part-time member to represent the Small and Cottage Industries Corporation to be nominated by that Corporation; and

(f) one part-time member to represent the Integrated Rural Development Programme to be nominated by the Local Government, Rural Development and Co-operatives Division.

(2) The Chairman and other members shall hold office on such terms and conditions as the Government may determine.

(3) No act or proceeding of the Board shall be invalid merely on the ground of the existence of any vacancy in, or any defect in the constitution of, the Board.

Functions of Chairman and other members

6. (1) The Chairman shall be a whole-time officer and the chief executive of the Board.

(2) The Chairman and other members shall exercise such powers and perform such functions as may be prescribed or as may be assigned to them by the Board from time to time.

Meetings of the Board

7. (1) The meetings of the Board shall be held at such times and places and in such manner as may be prescribed:

Provided that until rules are made in this behalf the meetings of the Board shall be held as and when convened by the Chairman.

(2) To constitute a quorum of a meeting of the Board, not less than three members shall be present.

(3) All questions at a meeting of the Board shall be decided by a majority of the members present and voting, and in the case of equality of votes the person presiding shall have a second or casting vote.

(4) All meetings of the Board shall be presided over by the Chairman or, in his absence, by a whole-time member authorised in writing by the Chairman.

Functions of the Board

8. The functions of the Board shall be-

(a) to establish electricity generation, transmission, transformation and distribution systems in the rural areas of Bangladesh;

(b) to take measures for effective use of electricity to foster rural development with special emphasis on increase of use of electric power for economic pursuits, such as development of agriculture and establishment of rural industries and assisting the disadvantaged sections of the community for augmenting their income and standard of living;

(c) to determine, with the approval of the Government, the criteria for rural electrification and associated works to ensure optimum use of resources and maximum socio-economic benefits;

(d) to conduct surveys and feasibility studies and prepare schemes for establishment of electrical systems in the rural areas and to provide for prompt utilisation of electrical power for socio-economic benefits to the community;

(e) to submit reports and schemes to the Government for approval and to execute the approved schemes;

(f) to take over from the Bangladesh Power Development Board and other organisations electric systems together with the assets and liabilities relating thereto and arrange for their management;

(g) to organise the prospective consumers of electricity into formal and informal groups, such as Palli Bidyut Samities, electric and other co-operatives, societies, associations and companies for the purpose of execution and management of schemes and providing related services;

(h) to prescribe by-laws for the Samities and other groups for their registration with the Board and determining the manner of their functioning;

(i) to receive grants and raise loans from the Government and other bodies and individuals for creating funds for the purpose of carrying out its business;

(j) to advance funds, on such terms and conditions as it may determine, to any Samity or other group for the execution of approved schemes, operation and management of works and services and providing loans to their members for the purpose of obtaining electric connections and equipping them for productive utilisation of electrical power;

(k) to hand over to any Samity or other group completed schemes for operation and management on such terms and conditions as it may determine;

(l) to organise effective programme for preparation, execution, operation, and management of rural electrification programmes and related works;

(m) to prescribe standards for work, equipment, operation, maintenance, procurement and warehousing personnel and fiscal administration and other aspects of management to be followed by the Board as well as by the Samities and other groups registered by it;

(n) to prescribe relending terms for the Samities and other groups borrowing funds from the Board and prescribe regulations for project appraisal and credit administration;

(o) to cooperate with agencies of the Government, interested non-government bodies as well as local administration and local authorities in rural development works and to take initiative for promotion of setting up of rural industries, boosting irrigation and drainage and augmenting commercial and domestic use of electricity;

(p) to enter into any business, including manufacture of electric equipment, and to enter into any contract and arrangements with others for efficient discharge of its functions;

(q) to conduct research and evaluation to adjudge the effectiveness of its programmes as well as those of others in the relevant fields;

(r) to take such other measures and exercise such other powers as it considers necessary or expedient for carrying out its functions under this Ordinance.

Provisions regarding power supply

9. Notwithstanding anything contained 3[ in this Ordinance or] in any other law for the time being in force, the Board-

(a) may, on such terms and conditions as may be determined by the Government, take over any electric power distribution system 4[ including one in a municipality] and operate it or make it over to any Samity for its operation;

(b) may prescribe standards for the operation and maintenance of distribution system made over to the Samities;

(c) shall receive supply of electricity from the Bangladesh Power Development Board 5[ and any power generating station run by any person or entity under a contract with the Government] at such rates and on such terms and conditions as may be determined by the Government;

(d) shall approve the rate of electricity to be levied by the Samities and other groups for sale of electric power to their members and in doing so shall see that the rate enables the Samities and other groups at least to recover costs of financing, operation and maintenance and depreciation of assets.

Special provision regarding operation, etc, of certain electricity system

6[ 9A. Notwithstanding anything contained in this Ordinance or in any other law for the time being in force, where any rural area is included in a municipality after the establishment therein of electricity generation, transmission, transformation and distribution systems by the Board, the systems so established shall continue to be operated, maintained and managed by the Board, as if the area had not been included in the Municipality.]

Board to be licensee

10. The Board shall, for the purpose of Electricity Act, 1910 (IX of 1910), be deemed to be licensee and shall have all the powers and discharge all the obligations of a licensee under that Act:

Provided that nothing in sections 3 to 11, sub-sections (2) and (3) of section 21 and sections 22, 23 and 27 or in clauses I to XII of the Schedule to the said Act relating to the duties and obligations of a licensee shall apply to the Board.

Appointment of officers, etc

11. (1) The Board may appoint such officers and other employees and engage such consultants, advisors, auditors and contractors as it may consider necessary for the performance of its functions on such terms and conditions as it may deem fit:

Provided that no post shall be created by the Board without the prior approval of the Government.

(2) The Board may appoint officers and other employees on deputation from other organisations and may also depute its own officers and employees to other organisations.

Recovery of dues

12. Any sum due to the Board or the Samities from any person under this Ordinance shall be recoverable as a public demand.

Fund

13. (1) There shall be formed a Fund to be known as the Rural Electrification Board Fund which shall vest in the Board and shall be utilised by the Board to meet the charges in connection with its functions under this Ordinance, including the payment of salaries and other remunerations to the Chairman, members, officers and other employees of the Board.

(2) To the credit of the Rural Electrification Board Fund shall be placed-

(a) grants made by the Government;

(b) loans obtained from the Government;

(c) grants made by local authorities;

(d) grants and loans obtained from any source outside Bangladesh with the sanction of the Government;

(e) sale-proceeds of electricity; and

(f) all other sums received by the Board.

Borrowing power

14. The Board may, with the prior approval of the Government, borrow money for carrying out the purposes of this Ordinance or for servicing any loan obtained by it.

Budget

15. The Board shall, by such date before the commencement of every financial year as the Government may direct, submit to the Government for approval a budget, in such form as the Government may specify, for each financial year showing the estimated receipts and expenditure and the sums which are likely to be required from the Government during that financial year.

Audit and Accounts

16. (1) The Board shall maintain its accounts in such manner and form as the Government may specify.

(2) The accounts of the Board shall be audited by the Comptroller and Auditor-General of Bangladesh (hereinafter in this section referred to as the Auditor-General), in such manner as he deems fit.

(3) For the purpose of an audit under sub-section (2) the Auditor-General or any person authorised by him in this behalf shall have access to all records, books, documents, cash, securities, stores and other property of the Board and may examine the Chairman or any member, officer or employee of the Board.

(4) The Auditor-General shall, as soon as possible after completion of the audit, send to the Board his audit report and the Board shall forward it, with its comments thereon, to the Government.

(5) The Board shall take steps forthwith to remedy the defects or irregularities pointed out in the audit report.

Submission of reports, etc

17. (1) The Board shall submit to the Government, as soon as possible after the end of every financial year, a report on the conduct of its affairs for that year.

(2) The Board shall submit to the Government at such times and at such interval as the Government may specify-

(a) such returns, accounts, statements, estimates and statistics as may be required by the Government;

(b) information and comments asked for by the Government on any specific subject;

(c) copies of documents required by the Government for examination or any other purpose.

Power of Entry

18. (1) The Chairman or any member, or any other person authorised by the Chairman in this behalf, may, with or without assistants or workmen, enter into or upon any land in order-

(a) to make any inspection, survey, experiment, valuation or inquiry;

(b) to dig or bore into the sub-soil;

(c) to set out boundaries and intended lines or work;

(d) to mark such boundaries and lines by placing marks and cutting trenches; or

(e) to do any other thing,

whenever it is necessary to do so for any of the purposes of this Ordinance:

Provided that no such entry shall be made without giving the occupier of the land at least twenty-four hours' notice of the intention to make such entry.

(2) When any person enters upon any land in pursuance of sub-section (1) he shall, at the time of entering or as soon thereafter as may be practicable, pay or tender payment for all necessary damage to be done, and in case of dispute as to the sufficiency of the amount so paid or tendered refer the matter to the Deputy Commissioner whose decision shall be final.

Power to place underground and overhead structure

19. The Board may place underground cable and pipes and overhead structures, such as poles, wires, brackets, stays, apparatus and appliances, for transmission and distribution of electricity as well as for telegraphic, telephonic, carrier and radio communications necessary for the proper execution of its schemes and performing other functions under this Ordinance.

Compulsory acquisition of land for the Board

20. Any land required by the Board for carrying out its functions under this Ordinance shall be deemed to be needed for a public purpose and such land may be requisitioned or acquired for the Board by the Government or the Deputy Commissioner, as the case may be, in accordance with any law for the time being in force.

Delegation of powers

21. The Board may, by general or special order, direct that such of its powers shall, in such circumstances and under such conditions, if any, as may be specified in the order, be exercisable also by the Chairman or by such member or officer of the Board as may be specified therein.

Power to issue directions

22. The Government may, from time to time, issue directions to the Board to take such measures as it considers necessary for carrying out the purposes of this Ordinance; and the Board shall comply with all such directions.

Indemnity

23. No suit, prosecution or other legal proceeding shall lie against the Board, the Chairman or any member, officer or employee of the Board for anything done or intended to be done in good faith under this Ordinance.

Board, etc, not to be construed as shop, etc

7[ 23A. Notwithstanding anything contained in any other law for the time being in force, the Board or a Samity shall not be construed as a “shop”, “commercial establishment”, “factory” or “industry” within the meaning of the Shops and Establishments Act, 1965 (E.P. Act VII of 1965), the Factories Act, 1965 (E.P. Act IV of 1965), or the Industrial Relations Ordinance, 1969 (XXIII of 1969). ]

Winding up

24. No provision of law relating to the winding up of bodies corporate shall apply to the Board, and the Board shall not be wound up except by order of the Government and in such manner as the Government may direct.

Power to make rules

25. The Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Ordinance.

Power to make regulations

26. The Board may, with the approval of the Government, make regulations, not inconsistent with the provisions of this Ordinance and the rules made thereunder, to provide for all matters not rendered to be provided for by rules and for which provision is necessary or expedient for carrying out the purposes of this Ordinance.

1 Clause (e) was substituted by section 2 of the Rural Electrification Board (Amendment) Act, 2002 (Act No. XXII of 2002)

2 The word “four” was substituted for the word “three” by section 2 of the Rural Electrification Board (Second Amendment) Act, 2001 (Act No. XXVII of 2001)

3 The words “in this Ordinance or” were inserted by section 2 of the Rural Electrification Board (Amendment) Ordinance, 1985 (Ordinance No. LIII of 1985)

4 The words “including one in a municipality” were inserted by section 2 of the Rural Electrification Board (Amendment) Ordinance, 1985 (Ordinance No. LIII of 1985)

5 The words “and any power generating station run by any person or entity under a contract with the Government” were inserted by section 2 of the Rural Electrification Board (Amendment) Act, 2001 (Act No. XXVI of 2001)

6 Section 9A was inserted by section 3 of the Rural Electrification Board (Amendment) Ordinance, 1985 (Ordinance No. LIII of 1985)

7 Section 23A was inserted by section 2 of the Rural Electrification Board (Amendment) Act, 1988 (Act No. XXIV of 1988)

Source : Ministry of Law, Justice and Parliamentary Affairs

Citation: 2ADC 973

Subject: Security & Exchange

Delivery Date: 2018-12-03

The Security & Exchange Ordinance, 1969 Section 17, 24, 27

The Court, however, shall not pronounce a definite finding of guilt, which function shall be left to the trial Court. The word "sufficient ground for proceeding" do not mean sufficient grounds for conviction. Prima facie material is sufficient for forming an opinion as to the ground for proceeding against the accused....(26) Securities and Exchange Commission vs Ruma N. Alam (Mohammad Fazlul Karim J) (Criminal) 2ADC 973

Citation: 4ADC 885

Subject: Service (Organization and Condition)

Delivery Date: 2018-11-28

The Service (Organization and Condition) Act, (XXXII of 1975), Section 4.

A decision of this Court should not be reopened on a cloak of review as the same is never meant for rehearing of the matter closed by a judgment but could be resorted to under exceptional circum-

The Service Rules of BOESL, Rule 57(B)

Seeking declaration that the order dated i Herein, terminating his service is illegal and void and also for further declaration that he being still in service as Deputy General Manager is entitled to emolument and other service benefits. Rafique Ahmed vs. Managing Director, Bangladesh Overseas (Md. Tafazzd Islam J) (Civil) 4ADC 885

Citation: 2ADC 414, 1ADC 81

Subject: Societies Registration

Delivery Date: 2018-11-28

The Societies Registration Act (XXI of 1860), Section 20

That a society registered under the Societies Registration Act may invest its fund with the object of getting more money for spending in charitable purposes. The main object of this investment is to provide charities to deserving persons and not to make profit. So the investment by BRAC in BRAC Bank Limited is not for profit. The object of BRAC as found from their Memorandum of Association is charity and for perpetuating their object such investment is permissible and we find no wrong in the same. BRAC, BRAC Centre 75 Mohakhali, vs Professor Mozaffar Ahmed etc. (Mahmudul Amin Choudhury C J)(Civil) 2ADC 414

Sonali Bank Vs. Ruhul Amin 46 DLR (AD) 85, Union of India and another Vs. G. Ganayutham AIR 1997 (SC) 3387.

AAT was in Serious error in modifying the order of dismissal in the manner as stated hereinbefore upon importing the concept of proportionality which has no application in the instant case Agrani Bank represented by the Chairman. Board of Director Agrani Bank vs Khandaker Badurdduza (Md. Ruhul Amin J) (Civil) 1ADC 81

Citation: 3ADC 404, 3ADC 420, 3ADC 49S

Subject: Special Powers

Delivery Date: 2018-12-03

Section 25 (B)(2).

Articles were seized and seizure list was prepared in his presence where in he put his signature he also identified the accused-Petitioner in the dock and that another..the eye witnesses of the occurrence, by their testimony proved the prosecution case and corroborated each other in support of the prosecution case and the informant, P.W 1 deposed that the accused petitioners illegally smuggled contraband alachi into Bangladesh from India without payment of custom duties and taxes and the prosecution witnesses proved that the accused petitioner kept in his possession 42 Kg. Indian black alachi and failed to show any legal document in respect of those articles and all the prosecution witness namely P.Ws. 1-4 proved the prosecution case as to the time, place and manner of occurrence and thus the prosecution proved the suit of the accused petitioner beyond reasonable doubt and accordingly dismissed the appeal. Delip Kumar Shaha vs The State (Md. Tafazzul Islam J) (Criminal) 3ADC 404

Application under section 561A of the Code of Criminal Procedure cannot lie praying to quash the judgment of a criminal trial unless it is shown that there is no legal evidence. In the instant case the learned Advocate-on-Record failed to make out any case before us to hold that the instant case has got no legal evidence. Shahabuddin vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 420

It appears that the prosecution opposed prayer for bail and as such we are of the view that the High Court Division ought to have exercised the jurisdiction after being satisfied that there are reasonable grounds for believing that the accused respondent is not guilty of the offence. The State vs Muhibur Rahman Manik (Amirul Kabir Chowdhury J)(Criminal) 3ADC 49S

Citation: 2ADC 263, 2ADC 946, 1ADC 282, 2ADC 16, 2ADC 27, 2ADC 52, 2ADC 54, 2ADC 233, 2ADC 304, 2ADC 313, 2ADC 401, 2ADC 691, 3ADC 13, 3ADC 112, 3ADC 300, 3ADC 476, 3ADC 793, 3ADC 137,3ADC 291, 3ADC 273, 3ADC 638

Subject: Special Powers

Delivery Date: 2018-11-29

The Special Powers Act, (XIV of 1974) Section 26, 27, 30.

In all such types of cases therefore it will be for the High Court Division to satisfy itself in the facts and circum-

stances of each case whether the person seeking remedy under Article 102 of the Constitution has adequately explained his conduct in not pursuing the statutory remedy under section 30 of the Special Powers Act which the High Court Division failed to do in the instant case. The High Court Division was swayed by the facts and circumstances of the other writ petition and was totally unmindful of the facts of the present case and did not at all consider that the appellant has made out a case that he had no opportunity of availing of the alternative remedy in section 30 of the Special Powers Act. If and when such a case is made out it will be improper, inequitable and indeed a denial of justice if the door is shut upon the face of the accused person. The High Court Division was wrong in holding that the instant writ petition was not maintainable. The appellant had no reasonable opportunity to avail of the alternative remedy. In such circumstances, his writ petition was fully maintainable. The High Court Division was wrong in holding that the instant writ petition was not maintainable. The appellant had no reasonable opportunity to avail of the alternative remedy. In such circumstances, his writ petition was fully maintainable. Nesar Ahmed also known as Babul vs Bangladesh (Mustafa Kamal J)(Civil) 2ADC 263

The Special Powers Act, (XIV of 1974), Section 25B

The provision of both these acts are distinct and different. One acts in personam and other acts in rem and as such acquittal or conviction under one Act will not automatically operate as acquittal or conviction or a bar in respect of other proceeding under another Act. Govt. Bangladesh vs M/s. Amora Holding Inc. Panama (Mohammad Fazlul Karim J) (Civil) 2ADC 946

Specific Relief Act, Section 42

Allotment of the land in undue haste cannot be considered as fraudulency. Capital Tower Limited vs Mirpur Mazar Co-Operative Market Society Limited (Md Ruhul Amin J) (Civil) 1ADC 282

Section 42

It is the settled principle of law that a remand order is never to be made to fill up the lacuna in the case of any party and a remand order should not be made on fanciful or unnecessary ground. The remand order of the High Court Division in the present case seems to be unnecessary because the High Court Division itself is competent to decide the dispute in revision on the basis of evidence on record which were since same before High Court Division. Most. Khairunnessa vs Atar Banu (Abu Sayeed Ahammed J)( Civil) 2ADC 16

Section 12

The onus being on the respondent to show that the property in question is not an abandoned property and the Court of Settlement having come to a definite finding that the respondent failed to dis-

charge that onus, the High Court Division erred in law in holding that the Court of Settlement did not come to any decision as to the abandoned character of the property and further erred in law. Govt. BUDPR , Dhaka vs Mst. Shiuli Begum (Mahmudul Amin Choudhury C JXCivil) 2ADC 27

Specific Relif Act, 1877 Section 42

The plaintiff of the suit being not party to the disputed deed and no case for preemption having been filed by them, they had no legal character to pray for declaration under section 42 Specific Relief Act, 1877....(8) Sukur Ali and others Vs Rahmat Ali (M.M. Ruhul Amin JXCivil) 2ADC 52

Section 42

The defendant though claimed title and possession partly by registered patta but did not file the kabuliyat and rent rceipt showing that the patta was acted upon, moreso, the patta do not relate to the suit land so is the case with Kabala dated 2.5.1932. On the contrary, by way of successive transfers relating back to the admitted original owner Kamini, the suit land devolved upon the plaintiff by purchase vide kabala dated 9.1.1978 (Ext. 3); the plaintiff as well proved rent receipts and led oral evidence-showing their possession in the suit land. The trial.Court as well found the title and possession of the suit land but the Court of appeal below without adverting to the reasoning of the trial Court set aside the judgment and decree of the trial Court even without reversing the finding therein. Sukkada Bala Gope vs Pran Hari Gope etc. (Mohammad Fazlul Karim JXCivil) 2ADC 54

Section 42

The policy of the legislature has been to treat objections as to jurisdiction both territorial or pecuniary as purely technical for the reason that section 21 of the Code of Civil Procedure provides that no objection as to the place of suing shall be allowed unless such objection was taken at the earliest stage but objection not having been taken would not vitiate the trial. Md. Shamsul Haque vs Salenullah (Mohammad Fazlul Karim J) (Civil) 2ADC 233

Section 42

In the absence of seeking a declaration as against such document or decree he can not have a declaration merely in respect of his title in respect of the property in suit even if he contends that his suit is not barred as per proviso to the Section 42 of the Specific Relief Act. The plaintiff is to seek relief as against the document or decree to which he is a party. Dudu Mia ors. vs Ekram Mia Chowdhury ors. (Md. Ruhul Amin JXCivil) 2ADC 304

Section 22(11), 23(b), 28(b)

Enforcement of a contract or refusal to enforce it lies in the Court's discretion and how this discretion will be exercised has been specifically indicated in

section 22(11) itself. It provides that the discretion of the Court is not arbitrary, but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. Quazi Din Mohammad vs Al-haj Arzan Ali (Shahabuddin Ahmed C J)(Civil) 2ADC 313

Section 39, 42

In the instant case the plaintiffs are executants of the kabala in question and therefore very much a party to the document. The kabala, as the facts indicate, is not certainly void but voidable. In order to remove the impediment in the way of the 'plaintiffs to get complete relief along' with the declaration the plaintiffs needed to make a prayer for cancellation of the document on payment of advalorem court fee. Chitta Ranjan Chakraborty ors vs Abdur Rob ors. (Bimalendu Bikash Roy Choudhurty J) (Civil) 2ADC 401

Section 21

Provision for arbitration could not be invoked by the respondent inasmuch as the appellant having not accepted the experimental bills submitted by the respondent, which was a condition precedent for the agreement (dated 16.2.88) to take effect, the agreement never became effective and remained in a stupor. Bangladesh vs Lithi Enterprises Ltd. (A.T. M. Afzal C J)(Civil) 2ADC 691

Section 42

President's Order No. 16 of 1972, Articles 15,16,13,14,24 The Bangladesh Abandoned Property Article 4, 15. Article 15 of the Bangladesh Abandoned Property (Control, Management and Disposal) Order ( President's Order No. 16 of 1972) Rule 5 of Bangladesh Abandoned Property (Buildings in the Urban Area) Rules, 1972. Syed Afzal Nawab vs G.M. Yousuf (Latifur Rahman J) (Civil) 3ADC 13

Section 9

Title Suit No. 90 of 1986 is barred by resjudicata as the subsequent suit was filed for the self same land. It may be stated that the Title Suit No. 90 of 1986 was filed for declaration of title confirmation of possession and for permanent injunction. Moulana Serajul Hague vs Md. Saifullah (M.M. Ruhul Amin J)(Civil) 3ADC 112

Section 42, 56F

Respondent has submitted regarding the immunity of the respondent to be used in our Courts, for which the suit is not maintainable. The question of immunity is a mixed questions of law and fact and the material has to be produced by way of averments in the written statement and thereafter the materials are required to be considered in the light of the evidence in the suit and a decision should be arrived at accordingly. Ismet Zerin Khan vs The World Bank (Mohammad Fazlul Karim J)Civil 3ADC

Section 39, 42

Lease agreement was properly drafted incorporating therein the terms of the agreement agreed upon by both the parties; that several officials of the Deputy Commissioner perused the lease agreement before execution and accordingly it was legally registered and that the defendant - respondent committed neither any wrong nor any fraud as alleged but the Deputy Commissioner most illegally cancelled the valid lease and the suit was filed malafide and prayed for dismissal of the suit. Bangladesh vs Mega Fisheries Ltd, Dhaka (Amirul Kabir Chowdhury J)(Civil) 3ADC 300

Section 42

Averments having been made in the plaint alleging fraud and malafide and that in the light thereof relief having been sought civil court is quite competent to investigate the question of fraud and malafide and the said allegation as can only finally adjudicate upon full dress hearing of he suit, the High Court Division was in error in rejecting the plaint upon an erroneous view that the suit is barred under section 37 of the PDR Act. Md. Marfat Ali Miah vs Sree Jagadish Chandra Sheel (Md. Ruhul Amin J)(Civil) 3ADC 476

Section 42, 60,114(c)

Seeking declaration that the kabala described in the schedule attached to the plaint is forged, fraudulent and void. Md. Aslam Khan vs Haji Ahdur Rahim and others .(MD. RUHUL AMIN J)(Civil) 3ADC 793

Specific Performance of Contract

That the appellant was inducted into possession by the respondent in pursuance of the contract and as the appellant is willing to perform his part of the contract, the respondent cannot rescind the contract and the appellant is entitled to get a decree for specific performance of contract. Amir Hossain vs Md. Amir Ali (Md. Hamidul Haque J) (Civil) 2 ADC 38

Specific Performance of contract inrespect of an agreement for sale

High Court Division committed grave illegality in striking out the names of the petitioners of civil revision and transposing the respondents as the petitioners who are not parties to the suit itself nor assignees in the same and allowing them to proceed with the revisional application. Jahanara Begum ors. vs Hazera Khatun ors. (Mohammad Fazlul Karim J)(Civil) 3ADC 137

Specific Performance of contract

Executing Court having stayed the Execution Case at the instance of third party and it violated the very maxim that the execution Court cannot go behind the decree. Mozharul Islam Chowdhury Vs Dilip Kumar Roy (Syed J. R. Mudassir Husain C J)(Civil) 3ADC 291

Specific Performance of contract

The impugned judgment cannot stand in

the eye of law as the High Court Division failed to notice that only issue to be decided in the matter is whether the unregistered deed of sale dated 01.03.1976 in favour of the plaintiff appellants is a genuine document or not. A. Jabbar Rari Vs Sultan Hossain Matbar (Amirul Kabir Chowdhury J)(Civil) 3ADC 273

Specific Performance of contract

In order to convert proposal into a promise the acceptance must be absolute and unqualified. Until accepted the stage of negotiations has not been passed and no legal obligation is imposed. Bangladesh Moktijoddah vs Kamal Trading Agency (A. T. M. Afzal CJ)(Civil) 3ADC 638

THE TOWN IMPROVEMENT ACT, 1953

(EAST BENGAL ACT NO. XIII OF 1953).[15th May, 1953]

1 2 An Act to provide for the development, improvement and expansion of the 3[ Capital of the Republic and Narayanganj and Tongi Municipalities] and certain areas in their vicinity and the constitution of a 4[ Kartripakkha] therefore.

WHEREAS it is expedient to make provision for the development, improvement and expansion of the 5[ Capital of the Republic and Narayanganj and Tongi Municipalities] and certain areas in their vicinity by opening up congested areas, laying out or altering streets, providing open spaces for purposes of ventilation or recreation, demolishing or constructing buildings, acquiring land for the said purposes and for the re-housing of persons displaced by the execution of improvement schemes, and otherwise as hereinafter appearing;

AND WHEREAS it is expedient that a 6[ Kartripakkha] should be constituted and invested with special powers for carrying out the objects aforesaid;

It is hereby enacted as follows:-

CHAPTER I

PRELIMINARY

Short title, extent and commencement

1. (1) This Act may be called the Town Improvement Act, 1953.

(2) It extends to the areas comprised within the limits of the 7[ Dhaka City]; but the Government may, by notification under the procedure prescribed by section 162, extend this Act or any provision thereof to the areas comprised within the limits of the Narayanganj Municipality 8[ and Tongi Municipality] and such other area in the vicinity of 9[ the said City and] those two Municipalities as may be specified in the notification.

(3) It shall come into force in such areas and on such dates as the Government may, by notification, specify.

Definitions

2. In this Act, unless there is anything repugnant in the subject or context,-

10[ (a) “betterment fee” means the fee declared under section 94 in respect of an increase in the value of land resulting from execution of an improvement or re-housing scheme;

(b) “City” means the Dhaka City;

(bb) “Corporation” means the Dhaka Municipal Corporation;]

(c) “Building Line” means a line (in the rear of a street alignment), up to which the main wall of a building abutting on a projected public street may lawfully extend;

(d) “Chairman” means the Chairman of the Kartripakkha;

11[ (e) “Deputy Commissioner” includes an Additional Deputy Commissioner, and also a Upazila Nirbahi Officer or an Assistant Commissioner authorised by the Deputy Commissioner to exercise any power conferred, or to perform any duty imposed, on the Deputy Commissioner by or under this Act;]

(f) “Improvement Scheme” means any scheme under Chapter III, but does not include a re-housing scheme or a projected public street referred to in section 69;

12[ (g) “Kartripakkha” means the Kartripakkha constituted under section 4;

(h) “member” means a member of the Kartripakkha;

(hh) “Municipality” means the Narayanganj Municipality or the Tongi Municipality;]

(i) “Notification” means a notification published in the official Gazette;

13[ (j) “Paurashava” means Narayanganj Paurashava or Tongi Paurashava;

(jj) “prescribed” means prescribed by rules or regulations made under this Act;]

(k) “Secretary to the Kartripakkha” means the person for the time being appointed by the Kartripakkha, to discharge the functions of Secretary to the Kartripakkha;

(l) “Tribunal” means the Tribunal constituted under section 82;

14[ * * *]

(n) “drain” includes a sewer, a house-drain, a drain of any other description, a tunnel, a culvert, a ditch, a channel and any other device for carrying of sullage or rainwater;

(o) “public street” means any street, road, lane, gally, alley, passage, pathway, square or court, whether a thoroughfare or not, over which the public have a right of way and includes-

(a) the access or approach to a public ferry,

(b) the roadway over any public bridge or cause-way,

(c) the footway attached to any such street, public bridge or cause-way,

(d) the passage connecting two public streets, and

(e) the drains attached to any such street, public bridge or cause-way, and, where there is no drain attached to any such street, shall be deemed to include also, unless the contrary is shown, all land up to the boundary wall, ail, hedge or pillar of the premises, if any, abutting on the street, or if a street alignment has been fixed, then up to such alignment;

(p) “street alignment” means the line dividing the land comprised in and forming part of a street from the adjoining land; and

15[ (q) “Upazila Parishad” means the Upazila Parishad of a Upazila in which this Act is in force;

(r) “Union Parishad” means the Union Parishad of a Union in which this Act is in force;

(s) “Zila Parishad” means the Zila Parishad of a district in which this Act is in force.]

CHAPTER II

THE KARTRIPAKKHA

Constitution of the Kartripakkha

Establishment and incorporation of Kartripakkha

3. The duty of carrying out the provisions of this Act shall, subject to the conditions and limitations hereinafter contained, be vested in a 16[ Kartripakkha, to be called the Rajdhani Unnayan Kartripakkha; and such Kartripakkha] shall be a body corporate and have perpetual succession and a common seal, and shall by the said name sue and be sued.

Kartripakkha

17[ 4. (1) The Kartripakkha shall consist of a Chairman and not more than five other members.

(2) The Chairman and other members shall be appointed by the Government on such terms and conditions as it may determine.

(3) The Chairman and other members shall be the whole-time officers of the Kartripakkha.

(4) The Chairman shall be the chief executive officer of the Kartripakkha.

(5) The Chairman and other members shall exercise such powers and perform such functions as may be prescribed, or as may be assigned to them by the Government from time to time.

(6) If a vacancy occurs in the office of the Chairman or if the Chairman is unable to discharge the functions of his office on account of absence, illness or any other cause, the Government shall make such arrangement for discharging the functions of the office of Chairman as it may consider expedient.

Meetings of the Kartripakkha

5. (1) The meetings of the Kartripakkha shall be held at such times and places as may be prescribed:

Provided that, until so prescribed, such meetings shall be held at such times and places as may be determined by the Chairman.

(2) To constitute a quorum at a meeting of the Kartripakkha, the number of members present shall be two, if the Kartripakkha consists of not more than three members, and three, if the Kartripakkha consists of more than three members.

(3) All meetings of the Kartripakkha shall be presided over by the Chairman and, in his absence by a member authorised in writing by the Chairman.

(4) At a meeting of the Kartripakkha, each member shall have one vote and, in the event of equality of votes, the person presiding shall have a second or casting vote.

(5) No act or proceeding of the Kartripakkha shall be invalid or be called in question on the ground of any vacancy in, or any defect in the constitution of the Kartripakkha.]

Conduct of Business

Temporary association of members with the Kartripakkha for particular purposes

21. (1) The Kartripakkha may associate with themselves, in such manner and for such period as may be prescribed by 18[ rules or regulations] made under section 152, any person whose assistance or advice they may desire in carrying out any of the provisions of this Act.

(2) A person associated with themselves by the Kartripakkha under sub-section (1) for any purpose shall have a right to take part in the discussions of the Kartripakkha relative to that purpose, but shall not have a right to vote at a meeting of the Kartripakkha, and shall not be a member of the Kartripakkha for any other purpose.

[]

22. [Constitution and functions of Committees.- Omitted by section 9 of the Town Improvement (Amendment) Act, 1987 (Act No. XXIX of 1987). ]

[]

23. [Meetings of Committees.- Omitted by section 9 of the Town Improvement (Amendment) Act, 1987 (Act No. XXIX of 1987).]

[]

24. [Fees for attendance at meetings.- Omitted by section 9 of the Town Improvement (Amendment) Act, 1987 (Act No. XXIX of 1987).]

[]

25. [Trustees and associated members of Board or Committee not to take part in proceedings in which they are personally interested.- Omitted by section 9 of the Town Improvement (Amendment) Act, 1987 (Act No. XXIX of 1987).]

Power to make and perform contracts

26. The Kartripakkha may enter into and perform all such contracts as they may consider necessary or expedient for carrying out any of the purposes of this Act.

Execution of contracts and approval of estimates

27. (1) Every such contract shall be made on behalf of the Kartripakkha by the Chairman:

Provided that a contract involving an expenditure exceeding five lakhs of taka shall not be made by the Chairman without the previous sanction of the Kartripakkha.

(2) Every estimate for the expenditure of any sum for carrying out any of the purposes of this Act shall be subject to the approval of the authority who is empowered by sub-section (1) to make or sanction the making of a contract involving the expenditure of a like sum.

(3) Sub-sections (1) and (2) shall apply to every variation or abandonment of a contract or estimate, as well as to an original contract or estimate.

Further provisions as to execution of contracts, and provision as to seal of Kartripakkha

28. (1) Every contract made by the Chairman on behalf of the Kartripakkha shall be entered into in such manner and form as would bind the Chairman if such contract were made on his own behalf, except that the common seal of the Kartripakkha shall be used; and every such contract may in the like manner and form be varied or discharged.

(2) Every contract for the execution of any work or the supply of any materials or goods shall be in writing and shall be sealed.

(3) The common seal of the Kartripakkha shall remain in the custody of the Secretary to the Kartripakkha, and shall not be affixed to any contract or other instrument except in the presence of a 19[ member] (other than the Chairman), who shall attach his signature to the contract or instrument in token that the same was sealed in his presence.

(4) The signature of the said 20[ member] shall be in addition to the signature of any witness to the execution of such contract or instrument.

(5) A contract not executed as provided in this section shall not be binding on the Kartripakkha.

Tenders

29. (1) At least seven days before entering into any contract for the execution of any work or the supply of any materials or goods which will involve an expenditure not exceeding ten thousand taka, or at least fourteen days before entering into such contract involving an expenditure exceeding ten thousand taka, the Chairman shall give notice, by advertisement in local newspapers, inviting tenders for the same.

(2) In every case in which the acceptance of a tender would involve an expenditure exceeding five lakhs of taka, the Chairman shall submit to the Kartripakkha the specifications, conditions and estimates, and all tenders received, specifying particular tender (if any) the acceptance of which he recommends.

(3) The Kartripakkha shall not be bound to sanction the acceptance of any tender which has been made; but it may sanction the acceptance of any such tender which appears to them, in consideration of all circumstances, to be the most advantageous, or may direct the rejection of all the tenders submitted to them.

Security for performance of contracts

30. The Chairman shall take sufficient security for the due performance of every contract involving an expenditure exceeding one thousand taka.

Supply of documents and information to the Government

31. (1) The Chairman shall forward to the Government a copy of the minutes of the proceeding of each meeting of the Kartripakkha, within ten days from the date on which the minutes of the proceedings of such meeting were signed as 21[ * * *].

22[ (1A) If, in the opinion of the Chairman, any resolution passed by the Kartripakkha is not in conformity with law, or is, in any way, against public interest, the Chairman shall, while forwarding a copy thereof, bring this fact to the notice of the Government making his own suggestion for requisite action in the matter. Till orders are received from the Government, the execution of the resolution shall be held in abeyance.]

(2) If the Government so directs in any case, the Chairman shall forward to it a copy of all papers which were laid before the Kartripakkha for consideration at any meeting.

(3) The Government may require the Chairman to furnish it with-

(a) any return, statement, estimate, statistics or other information regarding any matter under the control of the Kartripakkha, or

(b) a report on any such matter, or

(c) a copy of any document in the charge of the Chairman.

(4) The Government may, at any time, cause an investigation to be made, by an officer appointed in this behalf, into the affairs of the Kartripakkha and take such remedial measures as may be warranted by the findings of such investigation.

Employees of the Kartripakkha

Statement of strength and remuneration of staff

32. The Kartripakkha shall, from time to time prepare, and shall maintain, a statement showing-

(a) the number, designations and grades of the employees (other than employees who are paid by the day or whose pay is charged to temporary work) whom they consider it necessary and proper to employ for the purposes of this Act,

(b) the amount and nature of the salary, fees and allowances to be paid to each such employee, and

(c) the contribution payable under section 160 in respect of each such employee.

Kartripakkha to make 23[ regulations]

33. The Kartripakkha shall from time to time make 24[ regulations]-

(a) fixing the amount and nature of the security to be furnished by any employee of the Kartripakkha from whom it may be deemed expedient to require security;

(b) for regulating the grant of leave of absence, leave allowances and acting allowances to the employees of the Kartripakkha; and

(c) for establishing and maintaining a provident or annuity fund, for compelling all or any of the employees of the Kartripakkha (other than any servant of the Government in respect of whom a contribution is paid under section 160) to contribute to such fund, at such rates and subject to such conditions as may be prescribed by such 25[ regulations], and for supplementing such contributions out of the funds of the Kartripakkha:

Provided that a servant of the Government shall not be entitled to leave or leave allowances otherwise than as may be prescribed by the conditions of his service under the Government relating to transfer to foreign service.

Power of creation of posts for the Kartripakkha

34. (1) Subject to the provisions of this Act, the Kartripakkha may determine, from time to time, what officers and other employees are necessary for the performance of its functions, may also engage such experts and consultants, as it may consider necessary for the said purpose, and may fix the salaries, fees and allowances to be paid to such officers, employees, experts and consultants:

26[ Provided that prior approval of the Government shall be necessary for creation of posts carrying pay in a scale above the Modified New Scales of Pay of Tk. 2800-4425:]

Provided further that the creation of any post shall be subject to specific provision being made in the approved budget in that behalf.

(2) The Kartripakkha shall be liable to pay such contribution for leave allowance and pension of any servant of the Government employed as Chairman or an employee of the Kartripakkha, as may be required by the condition of his service under the Government, as the case may be, to be paid by him or on his behalf.

27[ ]

35. [Power of appointment, punishment, etc.- Omitted by section 13 of the Town Improvement (Amendment) Act, 1987 (Act No. XXIX of 1987).]

Controls by Chairman

36. The Chairman shall exercise supervision and control over the acts and proceedings of all employees of the Kartripakkha; and, subject to the foregoing sections, shall dispose of all questions relating to the service of the said employees and their pay, privileges and allowances.

Delegation of certain functions of Chairman

37. 28[ (1) The Chairman may, by general or special order in writing, delegate to any member or officer of the Kartripakkha any of the Chairman’s powers, duties or functions under this Act or any rule or regulation made thereunder except those conferred or imposed upon or vested in him by sections 27, 29 and 31.]

(2) The exercise or discharge of any powers, duties or functions delegated under sub-section (1) shall be subject to such conditions and limitations if any, as may be prescribed in the said order, and also to control and revision by the Chairman.

CHAPTER III

IMPROVEMENT SCHEMES AND RE-HOUSING SCHEMES

When improvement scheme may be framed

38. Whenever it appears to the Kartripakkha, whether upon an official representation made under section 43 or without such a representation,-

(a) that any buildings in any area which are used or are intended to be used as dwelling places, are unfit for human habitation, or

(b) that danger to the health of the inhabitants of buildings in any area, or in the neighbouring buildings, is caused by-

(i) the narrowness, closeness and bad arrangement and condition of streets or buildings or groups of buildings in such area, or

(ii) the want of light, air, ventilation or proper conveniences in such area, or

(iii) any other sanitary defects in such area, or

(c) that for the purpose of-

(i) providing building sites, or

(ii) developing and improving any area, or

(iii) remedying defective ventilation, or

(iv) creating new, or improving existing, means of communication and facilities for traffic, or

(v) affording better facilities for conservancy,

it is expedient to lay out new streets or to alter existing streets (including bridges, culverts and cause-ways), or

(d) that it is necessary to provide in any area, parks, open spaces, playgrounds or similar amenities, or

(e) that it is expedient and for the public advantage to provide-

(i) housing accommodation, or

(ii) buildings for public use and convenience, or

(iii) an adequate water-supply, or

(iv) a drainage, and sewerage scheme,

the Kartripakkha may pass a resolution to that effect and may then proceed to frame an improvement scheme.

Matters to be considered when framing improvement schemes

39. When framing an improvement scheme in respect of any area, regard shall be had to-

(a) the nature and conditions of neighbouring areas and of the Dacca City as a whole;

(b) the several directions in which the expansion of the Dacca City appears likely to take place; and

(c) the likelihood of improvement schemes being required for other parts of the Dacca City.

Matters to be provided for improvement schemes

40. An improvement scheme may provide for all or any of the following matters, namely:-

(a) the acquisition by the Kartripakkha of any land, in the area comprised in the scheme, which will, in their opinion, be required for the execution of the scheme or be affected by the execution of the scheme;

(b) the laying out or re-laying out of the land in the said area;

(c) such demolition, alteration or reconstruction of buildings situated on land which it is proposed to acquire in the said area, as the Kartripakkha may think necessary;

(d) the construction of any buildings which the Kartripakkha may consider it necessary to erect for any purpose other than sale;

(e) the laying out or alteration of streets (including bridges, cause-ways and culverts);

(f) the levelling, paving, metalling, flagging, channelling, sewering and draining of the said streets and the provisions therein of water, lighting and other sanitary conveniences ordinarily provided in a City or Municipality;

(g) the raising, lowering or levelling of any land in the area comprised in the scheme;

(h) the formation, retention or enlargement of open spaces;

(i) the augmentation of the present water-supply, or any other scheme for the improvement of the water-supply;

(j) the making of a drainage and sewerage scheme including outfall works; and

(k) any other matters consistent with this Act which the Kartripakkha may think fit.

Discontinuance of use of land and alteration or removal of building, etc

41. Whenever it appears to the Kartripakkha that it is expedient in the interests of the public and for the proper planning of the area included in any improvement scheme-

(a) that any use of land should be discontinued, or that any conditions should be imposed on the continuance thereof; or

(b) that any building or works or factory should be altered or removed,

the Kartripakkha may pass a resolution to the effect and such resolution shall form part of the particulars of the scheme under clause (c) of sub-section (1) of section 45.

Re-housing of persons displaced by improvement schemes

42. The Kartripakkha may frame schemes (herein called re-housing schemes) for the construction, maintenance and management of such and so many dwellings and shops as they may consider ought to be provided for persons of the poorer and working classes who-

(a) are displaced by the execution of any improvement scheme sanctioned under this Act; or

(b) are likely to be displaced by the execution of any improvement scheme which it is intended to frame, or to submit to the Government for sanction under this Act.

Authority for making an official representation for a general improvement schemes

43. (1) An official representation referred to in section 38 may be made by the Corporation or Paurashava-

(a) of its own motion; or

(b) on a written complaint by the Health Officer of the Corporation or Paurashava; or

(c) in respect of any area comprised in a municipal ward- on a written complaint signed by twenty-five or more residents of such ward who are liable to pay any tax assessed upon the annual value of buildings and, lands leviable under the 29[ Paurashava Ordinance, 1977 (XXVI of 1977)].

(2) If the Corporation or Paurashava decide not to make an official representation on any complaint made to them under clause (b) or clause (c) of sub-section (1), they shall cause a copy of such complaint to be sent to the Kartripakkha, with a statement of the reasons for their decision.

Consideration of official representations

44. (1) The Kartripakkha shall consider every official representation made under section 43, and, if satisfied as to the truth thereof and to the sufficiency of their resources, shall decide whether an improvement scheme to carry such representation into effect should be framed forthwith or not, and shall forthwith intimate their decision to the Corporation or Paurashava.

(2) If the Kartripakkha decide that it is not necessary or expedient to frame an improvement scheme forthwith, they shall inform the Corporation or Paurashava of the reasons for their decision.

(3) If the Kartripakkha fail, for a period of six months after the receipt of any official representation made under section 43, to intimate their decision thereon to the Corporation or Paurashava,

or if the Kartripakkha intimate to the Corporation or Paurashava their decision that it is not necessary or expedient to frame an improvement scheme forthwith,

the Corporation or Paurashava may, if they think fit, refer the matter to the Government.

(4) The Government shall consider every reference made to it under sub-section (3), and-

(a) if it considers that the Kartripakkha ought, under all the circumstances, to have passed a decision within the period mentioned in sub-section (3), shall direct the Kartripakkha to pass a decision within such further period as the Government may think reasonable, or

(b) if it considers that it is, under all the circumstances expedient that an improvement scheme should forthwith be framed, shall direct the Kartripakkha to proceed forthwith to frame an improvement scheme.

(5) The Kartripakkha shall comply with every direction given by the Government under sub-section (4).

Preparation, publication and transmission of notice as to improvement schemes and supply of documents to applicants

45. (1) When for any area within the City or Municipality any improvement scheme or re-housing scheme has been framed, the Kartripakkha shall prepare a notice, stating-

(a) the fact that the scheme has been framed,

(b) the boundaries of the area comprised in the scheme, and

(c) the place at which particulars of the scheme, a map of the area comprised in the scheme, and a statement of the land which it is proposed to acquire and of the land in regard to which it is proposed to recover a betterment fee, may be seen at reasonable hours.

(2) The Kartripakkha shall-

(i) cause the said notice to be published weekly for three consecutive weeks in the official Gazette and in local newspapers, with a statement of the period within which objections will be received, and

(ii) send a copy of the notice to the 30[ Mayor of the Corporation or Chairman of the Paurashava].

(3) The Chairman shall cause copies of all documents referred to in clause (c) of sub-section (1) to be delivered to any applicant on payment of such fee as may be prescribed by rule made under section 152.

Transmission to Kartripakkha of representation by Corporation or Paurashava

46. The 31[ Mayor of the Corporation or Chairman of the Paurashava] to whom a copy of the notice has been sent under clause (ii) of sub-section (2) of section 45 shall, within a period of thirty days from the receipt of the said copy, forward to the Kartripakkha any representation which the Corporation or Paurashava may think fit to make with regard to the scheme.

Furnishing list of persons and copy of, or extract from, assessment list

47. As soon as possible after the publication of a notice under section 45, the Chairman shall send a statement containing the particulars of the land which it is proposed to acquire in executing the scheme or in regard to which it is proposed to recover a betterment fee, to the 32[ Mayor of the Corporation or Chairman of the Paurashava], in which any portion

of the area comprised in the scheme is situated, with a request to furnish-

(i) a list of the names and addresses of the persons whose lands are likely to be acquired for, or affected by, the execution of the scheme, and

(ii) a copy of or extract from the municipal assessment list,

within fourteen days of the receipt of such request and on payment of prescribed fee.

Service of notice as to proposed acquisition of land or recovery of betterment fee

48. (1) During the thirty days next following the first day on which any notice is published under section 45 in respect of any improvement scheme or re-housing scheme, the Kartripakkha shall serve a notice on-

(a) every person whose name appears in the municipal assessment list or in the list referred to in item (i) of section 47, and

(b) the occupier (who need not be named) of each premises entered in the municipal assessment list which the Kartripakkha proposes to acquire in executing the scheme.

(2) Such notice shall-

(a) state that the Kartripakkha propose to acquire the land referred to in section 47 or to recover a betterment fee for the purpose of carrying out an improvement scheme or a re-housing scheme, and

(b) require such person, if he dissents from such acquisition or from the recovery of such betterment fee, to state his reasons in writing within a period of thirty days from the service of the notice.

(3) Every such notice shall be signed by or by the order of the Chairman.

Abandonment of improvement scheme, or application to Government to sanction it

49. (1) After the expiry of the periods respectively prescribed under clause (i) of sub-section (2) of section 45, and by section 46, and clause (b) of sub-section (2) of section 48 in respect of any improvement scheme or re-housing scheme, the Kartripakkha shall consider any objection, representation and statement of dissent received thereunder, and after hearing all Abandonment of improvement scheme, or application to Government to sanction it

persons making any such objection, representation or dissent who may desire to be heard, the Kartripakkha may either abandon the scheme or apply to the Government for sanction to the scheme, with such modifications (if any), as the Kartripakkha may consider necessary.

(2) Every application submitted under sub-section (1) shall be accompanied by-

(a) a description of, and full particulars relating to, the scheme, and complete plans and estimates of the cost of executing the scheme;

(b) a statement of the reasons for any modifications made in the scheme as originally framed;

(c) a statement of objections (if any), received under section 45;

(d) any representation received under section 46;

(e) a list of the names of all persons (if any) who have dissented, under clause (b) of sub-section (2) of section 48 from the proposed acquisition of their land or from the proposed recovery of a betterment fee and a statement of the reasons given for such dissent; and

(f) a statement of the arrangements made or proposed by the Kartripakkha for the re-housing of persons of the poorer and working classes who are likely to be displaced by the execution of the scheme.

Power to sanction or reject improvement scheme

50. The Government may sanction, either with or without modification, or may refuse to sanction, any improvement scheme or re-housing scheme submitted to it under section 49.

Notification of sanction to improvement scheme

51. (1) Whenever the Government sanctions an improvement scheme or re-housing scheme, it shall announce the fact by notification, and the Kartripakkha shall forthwith proceed to execute the scheme.

(2) The publication of a notification under sub-section (1), in respect of any scheme, shall be conclusive evidence that the scheme has been duly framed and sanctioned.

Savings

33[ 51A. (1) When any improvement or re-housing scheme or re-building scheme has been framed for execution in any area outside the City or Municipality, the provisions of sections 45 to 51 shall not apply.

Sanction to improvement scheme of Taka 5 Lakhs or more outside the 34[ City or Municipal] limit

(2) Any improvement or re-housing scheme or re-building scheme proposed to be executed in an area outside 35[ City or Municipal] limits and estimated to cost Taka five lakhs or more framed by the Kartripakkha, shall be submitted to Government for sanction.

(3) The Government may sanction such improvement or re-housing or re-building scheme either with or without modification, or may refuse to sanction but in either case it shall communicate its decision to the Kartripakkha within sixty days from the date of receipt of the scheme from the Kartripakkha.

(4) Whenever the Government sanctions, with or without modifications any improvement or re-housing scheme, or re-building scheme outside the 36[ City or Municipal] limits it shall announce the fact by a notification, and the Kartripakkha shall forthwith proceed to execute the scheme.

(5) The publication of a notification under sub-section (4) in respect of any scheme outside the 37[ City or Municipal] area shall be conclusive evidence that the scheme has been duly framed and sanctioned.

Savings

51B. The provisions of sections 45 to 51 of the Act shall not apply to any scheme inside the City or Municipality estimated to cost less than Taka five lakhs.

Improvement scheme of less than Taka 5 lakhs either within or outside the City or Municipality

51C. (1) Whenever the Kartripakkha frames any improvement scheme or re-housing scheme or re-building scheme of the value of less than Taka five lakhs for execution within or outside the 38[ City or Municipal] area it shall announce the fact by a notification and shall forthwith proceed to execute the same.

(2) The publication of a notification under sub-section (1) in respect of any scheme either within or outside the 39[ City or Municipal] area shall be conclusive evidence that the scheme has been duly framed.]

Alteration of improvement scheme after sanction

52. At any time after any improvement scheme or re-housing scheme has been sanctioned by the Government and before it has been carried into execution, the Kartripakkha may alter it:

Provided as follows:-

(a) if any alteration is estimated to increase the estimated net cost of executing a scheme by more than five per cent of such cost, such alteration shall not be made without the previous sanction of the Government;

(b) if any alteration involves the acquisition, otherwise than by agreement, of any land the acquisition of which has not been sanctioned by the Government, the procedure prescribed in the foregoing sections of this Chapter shall, so far as applicable, be followed, as if the alteration were a separate scheme;

(c) if owing to the changes made, in the course of a scheme, any land not previously liable under the scheme to the payment of a betterment fee, becomes liable to such payment, the provisions of sections 45, 48 and 49 shall, so far as they are applicable, be followed in any such case.

Combination of improvement scheme

53. Any number of areas in respect of which improvement schemes or re-housing schemes have been, or are proposed to be, framed, may, at any time, be included in one combined scheme.

Width of streets

54. No street laid out or altered by the Kartripakkha shall be of less width than-

(a) forty feet, if the street be intended for vehicular traffic, or

(b) twenty feet, if the street be intended for pedestrian traffic only;

Provided as follows:-

(i) the width of an existing street need not be increased to the minimum required by this section, if the Kartripakkha consider it impracticable to do so; and

(ii) nothing in this section shall be deemed to prevent the Kartripakkha from laying out service passages for sanitary purposes of any width less than twenty feet.

Transfer to Kartripakkha, for purposes of improvement scheme, of building or land vested in a Corporation or Paurashava, Zilla Parishad, Upazila Parishad or Union Parishad

55. (1) Whenever any building, or any street, square or other land, or any part thereof, which-

(a) is situated in the City or Municipality and is vested in the Corporation or Paurashava, or

(b) is situated in any area outside the City or Municipality, in which this Act is, for the time being, in force, and is vested in a 40[ Zilla Parishad, Upazila Parishad or Union Parishad], is within the area of any improvement scheme or re-housing scheme or is required for the purpose of such scheme, the Kartripakkha shall give notice accordingly to the 41[ Mayor of the Corporation or Chairman of the Paurashava, Zilla Parishad, Upazila Parishad or Union Parishad], as the case may be, and such building, street, square, other land or part shall thereupon vest in the Kartripakkha.

(2) Where any street or square, or any part thereof vests in the Kartripakkha under sub-section (1), no compensation shall be payable by the Kartripakkha to the Corporation or Paurashava or the 42[ Zilla Parishad, Upazila Parishad or Union Parishad] in respect of such street, square or part.

(3) Where any land, not being a street or square, vests in the Kartripakkha under sub-section (1), compensation in respect of such land shall not be payable by the Kartripakkha except to the 43[ Zilla Parshad, Upazila Parishad or Union Parishad].

(4) Where any building vests in the Kartripakkha under sub-section (1), compensation for such building shall be payable by the Kartripakkha to the Corporation or Paurashava or the 44[ Zilla Parishad, Upazila Parishad or Union Parishad], as the case may be.

(5) If any question or dispute arises-

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Citation: I ADC 488, 2ADC 83, 2ADC 136, 2ADC 192, 2ADC 217, 2ADC274, 2ADC 409,2ADC 455, 2ADC964, 3ADC 619, 4ADC168, 4ADC 281, 4ADC 458, 4ADC 469, 4ADC 587, 4ADC 592, 4ADC 595, 4ADC 640 , 4ADC 691, 4ADC 757, 4ADC 761, 5ADC 44, 5ADC 61, 5ADC 772, 5ADC 77

Subject: Transfer of Property

Delivery Date: 2018-12-01

The Transfer of Property Act (IV of 1882 ), Section 106,107, 108.

Unregistered argument one, was valid for one year only as per provisions of section 107 of the Transfer of Property Act and after the expiry of the period of one year the parties would be guided by the provisions of Premises Rent Control Act. 1991. Sub letters premises without the written permission of the landlord and on this ground alone the defendants are liable to be evicted from the suit premises. Hafiz Md. Shamsul Alam vs Musleuddin Ahmed (Md. Ruhul Amin, J)(Civil) I ADC 488

Section 52

It is also seen that appellant Bazlur Rahman transferred the disputed land to appellant Bushra Complex Ltd, when there was no civil suit pending. Therefore the High Court Division committed an error in holding that the transfer took place during the pendency of suit and was hit by the doctrine of lis pendence. Bushra Complex Ltd. 2. Mr. Bazlur Rahman vs Syeda Sabers Khatun (Mainur Reza Chowdhury 7j(Civil) 2ADC 83

Section 106

The learned Judge of the High Court Division clearly fell into an error in holding that the trial court had wrongly shifted the burden of proof of service of notice upon the defendant although the trial court on consideration of the both oral and documentary evidence, mentioned earlier, held that the tenancy in question had stood terminated on the expiry of chaitra, 1391 B.S. upon due service of notice under section 106 of the T. P. Act. Moreover in view of the evidence of P. Ws. 1 and 2 and the documents like postal receipts Ext. 5 and 5 A there was legal presumption of due service of notice in question upon the defendant and as such the trial court rightly observed that the defendant did not rebut such legal presumption of due service of notice examining his brother Mosharraf Hussain Musammat Mohsena Kahtun vs M/s Habib Knitting Mills ors. (Mohammad Abdur Rour J) (Civil) 2ADC 136

Section 106

The learned Single Judge of the High Court Division, following the trial court, committed serious error of law in relying upon Ext. 1, a certified copy of the firisti, because a firisti is no evidence of the contents of the documents filed. Consequently, he wrongly held that there exists relationship of landlord and tenant between the parties. Chandan Mondal @ Kushal Nath Modal vs Md. Abdus Samad Talukder (A. M.Mahmudur Rahman J)(Civil) 2ADC 192

Section 106

In the instant case pursuant to clause (4) above a notice dated 18.1.1974 was served upon the respondent-tenant determining the tenancy with effect from 28th day of February 1974 and though the period of notice dated 18.1.1974 determining the tenancy with effect from 28.1.1974 was more than period of 30 days contemplated by Ext. 1. Santosh Kumar Das vs Hajee Badiur Rahman (Mohammad Fazlul Karim J)(Civil) 2ADC 217

Section 107

Plaintiff got the settlement as far back as on 15 Chaitra 1355 B.S which corresponded to March, 1948 but the Non-agricultural Tenancy Act, 1949 came into force on 20^th October, 1949. As such its application in respect of the suit property does not arise at all. Mrs. Nirmala Bala Das vs Ganesh Chandra Dhupia (Mohammad Abdur Rouf J) (Civil) 2ADC274

Section 106

But from our reading of the provision of sections 18 of the Premises of Rent Control Ordinance it is very much clear that so long an ejectable monthly tenant continues to parent of the premises he can not be evicted but when the tenant fails to pay rent, he becomes a defaulter and he can be evicted after serving notice under section 106 of the Transfer of Property Act. Most. Hamida vs Md. Majibur Rahman (Abu Sayeed Ahammed J)(Civil)2ADC 409

Section 106

The ejectment suit against a monthly non-agricultural tenant holding land for more than one year but less then 12 years the tenant is entitled to 6 months notice and that section 106 of the Transfer of Property Act must be read as being subject to section 9 of the Non-Agricultural Tenancy Act which gives the same right to a monthly tenant as to other tenants we hold that the High Court Division has not committed any wrong and illegality in allowing the appeal and dismissing the suit. M/s. Shahjhan Enterprise Ltd. Vs Meghna Petroleum Ltd. (Mahmudul Amin Chowdhury C J) (Civil) 2ADC 455

Section 106

Although the scope of exercising revi-sional jurisdiction under Section 25 of the Small Cause Court Act is wider than under Section 115 of the Code of Civil Procedure, yet before interfering with any finding of fact of the trial court under section 25 of the said Act the High Court Division is to come to finding that such finding of the trial Court suffers from any

error of law ........ (6) Md. Nurul Islam vs

Md. All Hossain Miah ors (Mohammad Abdur Rouf J)(Civil) 2ADC964

Section 106

Purpose of invoking the principle of eviction by title paramount one has to prove that he has been evicted by a third person and that the third person had a paramount title, superior to the title of his alleged lessor. It is not necessary that the person claiming paramount title must in fact evict the person occupying the premises but a threat of eviction only is sufficient to constitute such eviction in the eye of law if the person sought to be evicted attorn to the claimant because the claimant gets into possession through the lessee who become his tenant. It is true that in the eye of law actual eviction is not necessary and a mere threat of eviction is sufficient to constitute eviction by title paramount if the person sought to be evicted attorn to the claimant of paramount title. Sree Amulya Ratn Chowdhury ors.vs Sreemati Shaibalini Ghose (A.T.M. Afzal CJ)(Civil) 3ADC 619

Section 106

The suit was filed are that premises in suit belonged to plaintiffs' predecessor Mir Baksha Miah and the said premises was let out to the defendants on November 14, 1960 at monthly rental basis. Kazi Md. Abdul Kuddus and another vs. Mst. Kaimon Bewa and others (Md. RuhulAmin J)(Civil) 4ADC168

Section 106 and 111

The learned Single Judge also considered the oral evidence of the parties and also the legal effect of filing of Rent Control Case No. 97 of 1979 by the defendant and came to a definite conclusion that relationship of landlord and tenant was established between the plaintiff and the defendant. The learned Single Judge also found that there was no complicated question of title and relationship of landlord and tenant having been established decreed the suit. Bidhan Kumar Dev vs. Rabiul Alam and other (Latifur Rahman CJ)(Civil) 4ADC 281

Section 105,106, 111, Paragraph 8

That a person continuing in possession after termination of a tenancy in his favour is also a tenant. It is on record that after the expiry of the period of lease the tenant is continuing in possession and is paying rent in the House Rent Control Case No. 367 of 1984 regularly. In that view of the matter, defendant is a tenant under the Premises Rent Control Ordinance and in that sense he is a statutory tenant. Rent Control legislation is a special law which gives a greater protection to a tenant against eviction so long he pays rent to the full extent allowable by this ordinance and perform the conditions of the tenancy. Abdul Aziz vs. Md. Abdul Majid (Latifur Rahman J)(Civil) 4ADC 458

Present case no contract for lease was executed creating right in favour of the petitioner and therefore, a preliminary decision taken previously having no consistency with the Rule can be rectified by the same authority and therefore, the prior decision in question, does not come under the concept of promissory Estoppel as a competent authority is empowered to modify its own decision which is found inconsistent with the Rules and policy to be persuaded in the matter of leasing out Jalmahal. The petitioner cannot invoke writ juris-

diction challenging the above impugned letter by which no disciplinary action has been taken and there is also a forum to seek remedy, if any, against the action taken by the appropriate authority for the alleged illegal act. Towhid Fishermen Co-operative Society Limited vs. Additional Deputy Commissioner (Md. Tafazzul Islam J) (Civil) 4ADC 465

Specific performance of contract in respect of a deed of reconveyance ....(2) With an oral agreement to reconvey the same to him on refund of the consideration money of Tk. 14,000/- ....(2) In view of entries in the written document any evidence contrary thereto cannot be legally acceptable under the provision of Sections 91/92 of the Evidence Act. Moreso it appears that except P.W.2 Abdus Salam, brother of the plaintiffs, they could not produce any other neutral witness to support the claim of oral contract of the defendant No.l to convey the suit property. Md. Shamsur Rahman @ Labul and others vs. Md. SadekAli @ Lessua Mia (Amirul Kabir Chowdhury J) (Civil) 4ADC 469

Section 106

That the defendant is defaulter because he paid the rent for the month of January 1986 but did not pay the WAS A charges as provided in clause 3(b) of the lease agreement Ext. 1. The appellate Court on the other hand found that no agreement for rent was entered by the plaintiff and the defendant and so there was no relationship of landlord and tenant between them and so Md. Belial and others vs. Mariam Hossain and others (Md. Tafazzul Islam J)(Civil) 4ADC 587

Section 106

Praying for ejectment of the defendants from the suit premises and also recovery of khas possession of the same. Dud Meah and others vs. Sayeda Hosena Khatun being dead her heirs (Md. Tafazzul Islam J)(Civil) 4ADC 592

The High Court Division made the Rule absolute on the finding that there is no dispute that the land in suit (2.78 acres) seeking partition whereof . Md. Abu Taher Patwary and others vs. Mst. Ramjan Banu alias Peara Begum and others (Md. Ruhul Amin J)(Civil) 4ADC 595

Section 106,109

For ejectment of the defendants as monthly tenants from holding Nos. 13 and 12 respectively on the ground of default in payment of rent and bonafide requirement of the owner. Khondker Ansar Ahmed & others vs. A.T.M. Monsur Ali Mallik & others (MM. Ruhul Amin J)(Civil) 4ADC 640

Section 106

The petitioners were impleded as defendants with a prayer for their eviction from the suit premise alleging, inter alia, that the defendants were inducted as tenants in the suit premise by the plaintiffs on the basis of a deed of agreement dated 26.10.1988 and that the defendants paid rents up to the months of August, 1993 and thereafter they did not pay the rent to the plaintiffs and became defaulters .Md. Siddiqullah and others vs. Sufura Khatun and others (Mohammad Fazlul Karim J) (Civil) 4ADC 691

Section 54

That section 54 of the Transfer of Property Act provides that sale would be complete even if the consideration money is not paid or is part-paid or part promised. He next submits that in the case of non-payment of full consideration money or part consideration, the vendor may sue the vendee for recovery of the consideration money. Satish Chandra Mondal vs. Ayjuddin Gazi being dead his heirs Amjad Gazi (M.M. Ruhul Amin J)(Civil) 4ADC 757

Declaration of title and recovery of khas possession of the second schedule land claiming title and ownership of the land. Jabbar Jute Mills Ltd. vs. Md. Abul Kashem & another (M.M. Ruhul Amin J) (Civil) 4ADC 761

Section 53A

Suit of declaration of title in the suit land on the averments...(2) Suit for declaration of title under section 53 A of transfer of property Act as made by (plaintiffs) is not maintainable and no case has also be mad out for the claim of title on the basis of adverse possession. Bijoy Kumar Sarbabidya vs. Government of Bangladesh (Md. Tafazzul Islam J) (Civil) 5ADC 44

Section 43

Judgment sought to be appealed that it was primarily contended before the High Court Division from the side of the parties to the appeal how far the Court of appeal below was correct in applying the provision of Section 43 of the Transfer of property Act. Amal Krishna

Chakrabarty vs. Sekender Mallik (Md. Ruhul Amin J)(Civil) 5ADC 61

Section 106

Praying for a decree for recovery of khas possession upon evicting the defendants therefore. Md. Shahanur Rahman vs. Alhaj Abbas Ali Mondal (Md. Joynul Abedin J) (Civil) 5ADC 772

The High Court Division observed the order book shows that by the order dated 21.04.2004 a notice in From N-10 was issued upon the petitioners to take necessary steps for engaging a new advocate within six weeks, in default it would be disposed of in accordance

with law .......... (4) Joy Dev Saha vs.

Haridas Sha (M.M. Ruhul Amin J) (Civil) 5ADC 774

Section 106

Seeking declaration of his leasehold right on Shop Nos. 1,5,9,11 and 12 situated in the ground floor of Meherun Nessa A.C. Market Mrs. Mohsina Rahman vs. Abdul Majid (Md. Tafazzul Islam J) (Civil) 5ADC 786

Section 106

Since the respondent is not a defaulter as found by the S.C.C. Judge and as per approved plan (Exhibit-2) by the Sylhet Municipality for construction of the first floor over the existing ground floor of the suit shop, it is not necessary to evict the respondent from the ground floor of the suit shop. But the learned S.C.C. Judge without considering the above aspect of the case erroneously held that

the plaintiff has been able to prove bonafide requirement and the learned Single Judge of the High Court Division after due consideration of the case of the parties, exhibits and deposition of both the parties rightly held that the appellant failed to make out a case of requirement. Nezma Khatun Chowdhury vs. Abdul Khaleque (Syed J.R. Mudassir Husain J) (Civil)5ADC 954

He possessed and a lease deed was also executed in his favour. He died leaving only son the writ petitioner. After the death of the allottee, the writ petitioner went to the Housing and Settlement Office, Chittagong for mutation of his name but the authority refused on the ground that the property was enlisted as abandoned property and published in the Bangladesh Gazette dated 28.04.1996. Mohammad Hossain vs. Secretary, Ministry of Housing (M.M. Ruhul Amin J) (Civil) 5ADC 957

Citation: 4ADC 389

Subject: Universal Declaration

Delivery Date: 2018-12-02

The Universal Declaration of Human Rights, Article 13

Violation of Universal Declaration of Human Right as recognized under Article 13 of the Universal Declaration of Human Rights and also on violation of principle of natural justice and on mala fide. Hussain Muhammad Ershad vs. Bangladesh and others. (Latifur Rahman CJ)(Civil) 4ADC 389

THE VAGRANCY ACT, 1943

(BENGAL ACT NO. VII OF 1943)

[25th October, 1943]

An Act to provide for dealing with vagrancy in Bangladesh. 1

WHEREAS it is expedient to make provision for dealing with vagrancy in Bangladesh;

It is hereby enacted as follows:-

CHAPTER I

PRELIMINARY

Short title, extent and commencement

1. (1) This Act may be called the 2[ * * *] Vagrancy Act, 1943.

(2) It extends to the whole of Bangladesh.

(3) It shall come into force in such areas on such dates as the Government may, by notification in the official Gazette, direct.

Definitions

2. In this Act, unless there is anything repugnant in the subject or context,-

(1) “Board” means the Vagrancy Advisory Board established under sub-section (i) of section 3;

3[ * * *]

(3) “child” means a person under the age of fourteen years;

(4) “Controller” means the Controller of Vagrancy appointed under sub-section (1) of section 4;

4[ * * *]

(6) “prescribed” means prescribed by rules made under this Act;

(7) “receiving centre” means a house or institution for the reception and temporary detention of vagrants, provided by the Government or certified as such under sub-section (1) of section 12;

(8) “Special Magistrate” means a Magistrate empowered to act as such under section 5;

(9) “vagrant” means a person found asking for alms in any public place, or wandering about or remaining in any public place in such condition or manner as makes it likely that such person exists by asking for alms but does not include a person collecting money or asking for food or gifts for a prescribed purpose;

(10) “vagrants' home” means an institution provided by the Government under sub-section (1) of section 13 for the permanent detention of vagrants.

Vagrancy Advisory Board

3. (1) The Government as soon as possible after the commencement of this Act shall establish a Board to be called the Vagrancy Advisory Board.

(2) The Board shall be constituted in the manner prescribed, subject to the condition that the number of the members of the Board shall not be less than ten.

(3) The function of the Board shall be to advise the Government on all matters relating to the control of vagrancy and in particular on the administration of this Act and for the aforementioned purposes any member of the Board may enter and inspect at any time any receiving centre or vagrants' home.

(4) The Board may, with the previous approval of the Government, make regulations to provide for,-

(a) the times and places at which its meetings shall be held;

(b) the issue of notices concerning such meetings; and

(c) the conduct of business thereat.

Appointment of Controller of Vagrancy and his assistants

4. (1) For carrying out the purposes of this Act the Government may appoint a person to be Controller of Vagrancy together with such other persons to assist him as it thinks fit.

(2) Persons appointed under sub-section (1) shall exercise such powers as may be conferred and perform such functions as may be required by or under this Act.

Special Magistrates

5. For the purposes of Chapter II of this Act the Government may empower any Magistrate of the first class to act as a Special Magistrate.

CHAPTER II

PROCEDURE

Power to require apparent vagrant to appear before Special Magistrate

6. Any police officer authorised in this behalf by the District Magistrate 5[ and, in 6[ a Metropolitan Area], by the Police Commissioner] may require any person who is apparently a vagrant to accompany him or any other police officer to, and to appear before, a Special Magistrate.

Summary inquiry in respect of apparent vagrant and declaration of person to be a vagrant by Special Magistrate

7. (1) When a person is brought before a Special Magistrate under section 6, such Special Magistrate shall make a summary inquiry in the prescribed manner into the circumstances and character of such person, and if, after hearing anything which such person may wish to say he is satisfied that such person is a vagrant, he shall record a declaration to this effect and the provisions of this Act relating to vagrants shall thereupon apply to such person.

(2) If on making the summary inquiry referred to in sub-section (1) the Special Magistrate is not satisfied that the person brought before him under section 6 is a vagrant such person shall forthwith be released.

(3) A Special Magistrate recording a declaration under sub-section (1) that a person is a vagrant shall forthwith send a certified copy of such declaration to the Controller, and to the officer-in-charge of the receiving centre to which such vagrant is sent under sub-section (1) of section 8.

Detention in receiving centre and medical examination of vagrant

8. (1) When a person has been declared to be a vagrant under sub-section (1) of section 7 he shall forthwith be sent in the manner prescribed to the nearest receiving centre and there handed over to the custody of the officer-in-charge of such receiving centre, and such vagrant shall be detained in such receiving centre until he is sent therefrom to a vagrants' home under sub-section (1) of section 9.

(2) As soon as possible after the commencement of the detention of a vagrant in a receiving centre the medical officer of such receiving centre shall with such medical help as may be necessary medically examine the vagrant in the manner prescribed as quickly as is consistent with the circumstances of the case and shall thereupon furnish the officer-in-charge of the receiving centre with a medical report regarding the health and bodily condition of the vagrant.

(3) The medical report referred to in sub-section (2) shall state inter alia,-

(a) the sex and age of the vagrant;

(b) whether the vagrant is a leper;

(c) from what, if any, communicable diseases other than leprosy the vagrant is suffering;

(d) whether the vagrant is insane or mentally deficient;

(e) what is the general state of health and bodily condition of the vagrant and for which, if any, of the prescribed types of work he is fit.

Procedure or sending vagrant to vagrants’ home

9. (1) On receipt of the medical report referred to in sub-section (2) of section 8 the officer-in-charge of a receiving centre shall, as soon as the necessary arrangements can be made, send the vagrant in the prescribed manner to such vagrants' home as the Controller may by general or special order in this behalf direct, and the said officer-in-charge shall along with such vagrant send to the Manager of the said vagrants' home,-

(a) the certified copy of the declaration made under sub-section (1) of section 7 relating to such vagrant which is to be sent to such officer-in-charge under sub-section (3) of the said section, and

(b) the said medical report.

(2) When a vagrant is sent to a vagrants' home under the provisions of sub-section (1) he shall be handed over to the custody of the Manager of such vagrants' home and shall be detained therein, or in a vagrants' home to which he may be transferred under section 16, until duly discharged therefrom under section 18.

(3) In issuing any order under sub-section (1) the Controller shall ensure that the following classes of vagrants, namely,-

(a) lepers,

(b) the insane or mentally deficient,

(c) those suffering from communicable diseases other than leprosy,

(d) children,

are segregated from each other and from vagrants who do not belong to any of the aforementioned classes and shall also ensure that the male vagrants are segregated from the female vagrants:

Provided that the provisions of this sub-section in respect of children may be relaxed as prescribed.

Externment of vagrant from area in which the Act is in force

10. (1) If after an inquiry made under sub-section (1) of section 7 the Special Magistrate is satisfied that the person brought before him under section 6 is a vagrant but, in the course of such inquiry, it has appeared that the vagrant was not born in the area in which this Act is in force or has not been continuously resident therein for more than one year, the Special Magistrate, after making such further inquiry, if any, as he may deem necessary, may by order in writing direct the said vagrant to leave the said area within such time and by such route or routes as may be stated in the order and not to return thereto without the permission in writing of the Controller, and in such case, notwithstanding anything contained in sub-section (1) of section 7, the provisions of sections 8 and 9 shall not apply to such vagrant:

Provided that if the Special Magistrate deems it necessary to make any further inquiry as aforesaid in respect of such vagrant, the vagrant shall be detained pending conclusion of the said inquiry in such receiving centre as the Controller may by general or special order in this behalf direct and for this purpose shall be sent thereto in the manner prescribed and there handed over to the custody of the officer-in-charge of such receiving centre, and shall, while he is so detained, be subject to the rules of management and discipline referred to in sub-section (1) of section 15.

(2) The Controller shall not give the permission referred to in sub-section (1) unless, if the vagrant had been detained in a vagrants' home, such vagrant would have been eligible to have been discharged therefrom under the provisions of sub-section (1) of section 18.

(3) When a vagrant against whom an order has been made under sub-section (1) fails to comply with such order within the time specified therein, or after complying with the said order returns without the permission in writing of the Controller to any place within the area referred to in the said order, such vagrant may be arrested without a warrant by any police officer, and shall be liable, on conviction before a Magistrate, to be punished with rigorous imprisonment for a term which may extend to six months.

Validity of custody and detention of vagrant

11. A declaration that a person is a vagrant recorded by a Special Magistrate under sub-section (1) of section 7 shall be sufficient authority to any person to retain such vagrant in his custody when such person is under the provisions of this Act or of any rule made thereunder conveying a vagrant from the Court of a Special Magistrate to a receiving centre or, from a receiving centre to a vagrants' home or from one vagrants' home to another and to the officer-in-charge of a receiving centre and to the Manager of a vagrants' home for detaining such vagrant in accordance with the provisions of this Act in a receiving centre or vagrants' home, as the case may be.

CHAPTER III

RECEIVING CENTRES AND VAGRANTS’ HOME

Provision of receiving centres

12. (1) The Government may provide and maintain together with the necessary furniture and establishment one or more receiving centres at such place or places as it thinks fit, or may certify by notification in the official Gazette, any existing charitable or other institution, subject to the prior consent of the controlling authority of such institution and on such conditions as may be mutually agreed upon between the Government and the said authority, to be a receiving centre for the purposes of this Act.

(2) For the purposes of this Act every receiving centre shall be under the immediate control of an officer-in-charge who shall be appointed by the Government and who shall perform his functions subject to the orders of the Controller.

(3) The Government shall also appoint for every receiving centre one or more suitably qualified persons as medical officers.

Provision of vagrants’ homes

13. (1) The Government may provide and maintain together with the necessary furniture, equipment and establishment, one or more vagrants' homes at such place or places as it thinks fit and such vagrants' homes may include provision for the teaching of agricultural, industrial or other pursuits and for the general education and medical care of the inmates.

(2) Every such vagrants' home shall be under the immediate charge of a Manager who shall be appointed by the Government and who shall perform his functions subject to the orders of the Controller.

(3) The Government may appoint in respect of a vagrants' home a suitably qualified person as medical officer and one or more suitably qualified persons as teachers.

Search of vagrants

14. Every officer-in-charge of a receiving centre or Manager of a vagrants' home may order that any vagrant detained in such receiving centre or vagrants' home shall be searched and that the personal effects of such vagrant shall be inspected and any money then found with or on the vagrant shall be applied in the manner prescribed towards the welfare of vagrants and any of such effects other than money may be sold in auction and the proceeds of the sale shall be applied as aforesaid:

Provided that a female vagrant shall be searched by a female only and with due regard to decency.

Management and discipline

15. (1) Vagrants detained in receiving centres or vagrants' homes under this Act shall be subject to such rules of management and discipline as may from time to time be prescribed.

Explanation.- Discipline includes the enforcement of the doing of manual or other work by a vagrant.

(2) If any vagrant wilfully disobeys or neglects to comply with any rule referred to in sub-section (1) he shall on conviction before a Magistrate be liable to be punished with rigorous imprisonment for a term which may extend to three months.

(3) The Government may authorise the Manager of a vagrants' home to punish any vagrant detained in such vagrants' home who wilfully disobeys or neglects to comply with any rule referred to in sub-section (1) with hard labour of the type prescribed for any period not exceeding seven days; and such punishment may be in lieu of or in addition to any punishment to which the vagrant may be liable under sub-section (2).

Transfer of vagrants from one vagrants’ home to another

16. The Controller may by order in writing direct the transfer of a vagrant from one vagrants' home to another and a vagrant in respect of whom such an order is passed shall thereupon be sent in the manner prescribed to, and handed over to the custody of, the Manager of the vagrants' home to which he has by such order been transferred.

Outside employment to be obtained for vagrants when possible

17. The Manager of a vagrants' home shall use his best endeavours to obtain outside the vagrants' home suitable employment for vagrants detained therein.

Discharge of vagrants from vagrants’ home

18. (1) A vagrant may be discharged from a vagrants' home under orders of the Controller,-

(a) on the Manager of such vagrants' home certifying in the prescribed manner that satisfactory employment has been obtained for such vagrant;

(b) on its being shown to the satisfaction of the Controller that such vagrant has become possessed of an income sufficient to enable him to support himself without resorting to vagrancy;

(c) on a relative of such vagrant, or a person who the Controller is satisfied is interested in the welfare of such vagrant, entering into a bond with or without sureties for a sum prescribed, to look after and maintain such vagrant and to prevent him from resorting to vagrancy;

(d) for other good and sufficient reasons to be recorded by the Controller in writing.

(2) When the employment referred to in clause (a) of sub-section (1) has been obtained for a vagrant, any such vagrant refusing or neglecting to avail himself thereof shall be liable to be punished on conviction before a Magistrate, with rigorous imprisonment for a term which may extend to one month.

CHAPTER IV

PENALTIES AND MISCELLANEOUS

Punishment for employing or causing persons to ask for alms

19. Whoever employs or causes any person to ask for alms, or abets the employment or the causing of a person to ask for alms, or whoever, having the custody, charge, or care of a child, connives at or encourages the employment or the causing of a child to ask for alms shall be liable to be punished on conviction before a Magistrate with rigorous imprisonment for a term which may extend to two years or with fine or with both.

Punishment for refusing to go before a Special Magistrate

20. Any person refusing or failing to accompany a police officer to, or to appear before a Special Magistrate, when required by such officer under section 6 to do so, may be arrested without warrant, and shall be liable to be punished on conviction before a Magistrate with rigorous imprisonment for a term which may extend to one month or with fine, or with both.

Punishment for refusing to submit to medical examination at receiving centre

21. Any vagrant who refuses to submit to a medical examination by the medical officer of a receiving centre or by any person assisting such medical officer under the provisions of sub-section (2) of section 8 shall be liable to be punished on conviction before a Magistrate with rigorous imprisonment for a term which may extend to one month.

Punishment for escape from receiving centre or vagrants’ home

22. Any vagrant who escapes from any custody to which he has been committed under this Act or any rule made thereunder or who leaves a receiving centre without the permission of the officer-in-charge thereof, or who leaves a vagrants' home without the permission of the Manager thereof, or who, having with the permission of such officer-in-charge or Manager, as the case may be, left a receiving centre or a vagrants' home for a time specified under any rule referred to in sub-section (1) of section 15, wilfully fails to return on the expiration of such time, may be arrested without warrant and shall for every such offence, be liable to be punished, on conviction before a Magistrate with rigorous imprisonment for a term which may extend to six months.

Procedure at end of imprisonment

23. Every person imprisoned under the provisions of sub-section (2) of section 15, sub-section (2) of section 18, section 20, section 21 or section 22 shall at the end of his term of imprisonment be brought under police custody before the nearest Special Magistrate who shall forthwith deal with such person in the manner laid down in sections 7, 8 and 9 as if such person had been brought before such Special Magistrate under the provisions of section 6:

Provided that if the said Special Magistrate is of the opinion that such person would, if detained under this Act as a vagrant in a vagrants' home, be eligible to be discharged therefrom under the provisions of sub-section (1) of section 18, he may, instead of dealing with such person as aforesaid, direct that such person be released and such person shall thereupon be set at liberty.

Prosecution and jurisdiction to try offenders

24. (1) No prosecution for an offence under this Act may be commenced except by, or with the permission of, such officer as may be prescribed in this behalf.

(2) No offence under this Act shall be triable by any Magistrate other than a Magistrate of the first class.

Persons to be deemed public servants

25. All persons empowered to perform any function under this Act shall be deemed to be public servants within the meaning of section 21 of the 7[ Penal Code].

Indemnity

26. No suit, prosecution or other legal proceeding shall lie against any person empowered to perform any function under this Act for anything which is in good faith done or intended to be done under this Act.

[Repealed]

27. [Repealed by the First Schedule of the East Pakistan Ordinance, 1960 (Ordinance No. XXVIII of 1960).]

Power to make rules

28. (1) The Government may make rules for carrying out the purposes of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(a) the purposes for which a person may collect money or ask for food or gifts referred to in clause (9) of section 2;

(b) the constitution of the Board referred to in sub-section (2) of section 3;

(c) the manner in which the summary inquiry referred to in sub-section (1) of section 7 shall be made;

(d) the manner in which a vagrant is to be sent to a receiving centre under sub-section (1) of section 8 and the proviso to sub-section (1) of section 10;

(e) the manner in which a medical officer is medically to examine a vagrant under sub-section (2) of section 8;

(f) the types of works for which a vagrant may be reported fit under clause (e) of sub-section (3) of section 8;

(g) the manner in which a vagrant is to be sent to a vagrants' home under sub-section (1) of section 9;

(h) the manner in and the extent to which the provisions of sub-section (3) of section 9 in respect of children may be relaxed;

(i) the manner in which the money found with or on, or the proceeds of the sale of other personal effects of, a vagrant may be applied to the welfare of vagrants under section 14;

(j) the management and discipline referred to in sub-section (1) of section 15 to which vagrants detained in receiving centres and vagrants' homes shall be subject;

(k) the type of the hard labour which is to form the punishment which may be awarded under sub-section (3) of section 15;

(l) the manner in which a vagrant may be sent from one vagrants' home to another under section 16;

(m) the manner in which the Manager of a vagrants' home is to certify under clause (a) of sub-section (1) of section 18 that satisfactory employment has been obtained for a vagrant;

(n) the amount of the bond referred to in clause (c) of sub-section (1) of section 18;

(o) the officer referred to in sub-section (1) of section 24.

29. [Continuance of action taken under Bengal Ordinance II of 1943.- Omitted by section 2 and the First Schedule of the East Pakistan Repealing and Amending Ordinance, 1962 (East Pakistan Ordinance No. XIII of 1962).]

_________________________________________________

1 Throughout this Act, the words “Bangladesh” and “Government” were substituted for the words “East Pakistan” and “Provincial Government” respectively by section 3 and the Second Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)

2 The word “Bengal” was omitted by section 3 and the Second Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)

3 Clause (2) was omitted by First Schedule of the East Pakistan Ordinance No. XXVIII of 1960

4 Clause (5) was omitted by First Schedule of the East Pakistan Ordinance No. XXVIII of 1960

5 The words and comma “and, in the Dacca Metropolitan Area, by the Police Commissioner” were inserted by section 12 and the Schedule of the Dacca Metropolitan Police (Amendment) Ordinance, 1976 (Ordinance No. LXIX of 1976)

6 The words “a Metropolitan Area” were substituted for the words “the Dacca Metropolitan Area” by section 114 and the Schedule III of the Chittagong Metropolitan Police Ordinance, 1978 (Ordinance No. XLVIII of 1978)

7 The words “Penal Code” were substituted for the words “Pakistan Penal Code” by section 3 and the Second Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)

Source : Ministry of Law, Justice and Parliamentary Affairs

Citation: 4ADC 476, 4ADC478, 5ADC 478, 5ADC 917, 2ADC 440, 2ADC 388

Subject: VAT

Delivery Date: 2018-12-02

VAT rule, Rule 3(Ka)(Kha)(Ga) and (Gha)

The Petitioner made a prayer for stay of operation of arbitrary deduction of value approved by respondent

Respondent did not give any opportunity to the petitioner to show cause against the allegation and the writ petitioner was constrained to file the above writ petition and obtained a rule nisi and interim order, that the order dated 15.12.2003 passed by respondent No.3 making adjustment in the current account registrar of the petitioner company by deducting Tk. 71,17,344.00 from the said registrar (Annexures-F & Fl) be stayed for 3 (three) months. The order of stay was subsequently extended by order dated 5.5.2004 for a period of 6 (six) months. National Board of Revenue vs. M/s. Anwar Cement Ltd (M.A.Aziz J)(Civil) 4ADC 476

For that the High Court Division without considering and discussing at length the question of law and facts came to an erroneous finding that appointment of Md. Abdul Motaleb as marriage registrar is not sustainable by law and as such the petitioner was highly aggrieved for no fault of him which ought to have been considered by the High Court Division and the High Court Division also failed to consider that as a result of the Judgment of the High Court Division it did not retain for him any ward at all and as such the impugned judgment and order are liable to be set aside for ends of justice. ..(14) Md. Abdul Motaleb vs. Md. Rafiqul Alam & ors (Amirul Kabir Chowdhury J)(Civil) 4ADC478

The VAT Act, 1991, Section 42,42(2), Sub-Section (4)

We are of the view that since the Tribunal has no authority or jurisdiction to relax the mandatory deposit of 50%

either of the demanded VAT or the penalty the order passed by the Tribunal was of little legal consequence and, as such, the petitioner cannot thrive upon it to get the benefit of subsection (4) of Section 42 of the Act. And since at the relevant time deposit of 50% either of the demanded VAT or the penalty was compulsory to maintain and hear an appeal which the petitioner did not, the legal consequence would be that the appeal would be incompetent, or in other words not in form and, therefore, it does not matter whether any consequence has been provided for in the statute for such non-deposit Since the appeal itself was not in form, the question of having allowed the same pursuant to the provision of sub-section (4) of Section 42 of the Act does not arise at all. Bombay Sweets & Company Limited vs. President, Appeal Tribunal (Md. Ruhul Amin CJ) (Civil) 5ADC 478

The VAT Act, 1991, Sections, 5,6,7, 14(1)

The High Court Division observed that Customs Authority taking a correct view of law and facts rightly realized the Customs duty at the enhanced rate i.e. at the rate of 37.5% on the strength of SRO 47 dated 14.02.2000 and also correctly and legally imposed supplementary duty at the rate 20% pursuant to SRO No. 45 dated 14.02.2000.Md. Alam vs. The Commissioner of Customs (Mohammad Fazlul Karim J) (Civil) 5ADC 917

Vested Property.

Neither from the averments made in the plaint we find that the plaintiff claimed the property in suit as a vested property nor we find that the learned Subordinate Judge held that the property is a vested property. But inspite of such averments made in the plaint and the finding of the learned Subordinate Judge the learned Judges of the High Court Division have made out a third case in holding that the property is a vested property. Md. Shamsul Huda ors. vs Bangladesh (A. M. Mahmudur Rahman J)(Civil) 2ADC 440

Voluntary retirement from service

The appellant Corporation did never refuse to pay such benefits to the writ petitioners and they are still willing to pay such minor portion of the benefits to the writ petitioners as soon as they will receive the necessary direction from the Ministry of Communication and as such the High Court Division ought not to have declared the orders of voluntary retirement of the writ petitioners unlawful. The Chairman, B.R.T.C vs Nooruddin & Abdul Aziz & Abdul Aziz (Mohammad Abdur Rouf J) (Civil) 2ADC 388

Citation: 1 ADC 157, 1 ADC 215, 2ADC 91, 2ADC 548, 2ADC 254, 3ADC 5, 4ADC 889

Subject: Waqf

Delivery Date: 2018-12-02

The Waqf Ordinance (I of 1962), Section 51.

The court is required to look into the attending circumstances of each case and act to its own criteria as to the eligibility of a candidate for the Mutwalliship. Moulana Abdul Mannan VS Halma (Civil) 1 ADC 157

Section 34, Sub-Section 5

waqf administrator to make necessary amendment/change or variation of the "scheme" which also can be called "bye-laws" for better management/administrator of any waqf estate if he considers it fit and necessary. Afsar Uddin Sarker vs Md. Aftabuddin & others (Abu Sayeed Ahammed J) (Civil) 1 ADC 215

The Waqf Ordinance, (I of 1962) Section 50, 64 (1) (2), 102

Once a waqf it is always a waqf and the nature of the property is not extinguished by lapse of time that a notice under section 64 of the Waqfs Ordinance is not controlled by any law of limitation or under Article 142 or Article 144 of the Limitation Act. Abdul Malek Sawdagar (3) vs Md. Mahbubey Alam (Mohammad Fazlul Karim J)(Civil) 2ADC 91

Section 43, 38, 51

Admittedly in appeals, it is not necessary for the appellant to appear on all dates of hearing of the same the responsibility lies with the filing advocate and here when the learned Advocate failed to appear the appeal was dismissed for default. So laches not on the part of the appellant but it is a laches of the Advocate for the appellant and appellant should not suffer. Aminul Haque Shah Chowdhury @ Aminul Shah Chowdhury vs ors. vs Abdul Wahab Shah Chowdhury ors. (Mahmudul Amin Choudhury J) (Civil) 2ADC 548

Section 32, (1) (4)

The remedy of appeal provided in subsection (2) of section 32 of the Ordinance was not an equally efficacious remedy since the appellant would have to vacate his office of Mutawalli as a condition precedent to such appeal. Tafiul Huq Sarker vs Bangladesh (Bimalendu Bikash Roy Choudhury J)(Civil) 2ADC 254

Section 2(9), 62(2), 64(1)

Since the appellants are neither strangers nor trespassers as regard the waqf property, rather being the tenants of the Waqf Estate and the said tenancy having not been terminated the order of the Administrator of Waqf for eviction of the appellants as per provision of section 64(1) of the Ordinance cannot be considered as legal, rather the said order is a misconceived one. As the appellants are tenants of the waqf estate and that even if the tenancy is terminated, the appellants are not liable to be evicted resorting to provision of section 64(1) of the ordinance since the relationship between the appellants and the waqf estate is governed by the provision of premises Rent Control Act, 1991. Md. Yousufvs Bangladesh (Md. RuhulAmin J) (Civil) 3ADC 5

Section 32

Some of the Monthly tenants of the Waqf properties defaulted in payment of rent. So suit was filed for eviction against those tenants from the Waqf property.

The High Court Division considering a number of decisions, held that a Mutwalli of a Waqf Estate is mere manager and not ostensible owner. Mosammat Parveen Sultana vs. Mosammat Sahera Khatun & another (M.M. Ruhul Amin J)(Civil) 4ADC 889

Citation: 1 ADC 528

Subject: Wealth Tax

Delivery Date: 2018-12-02

The Wealth Tax Act, 1957, Section 2(m).

Since the ornaments were mortgaged with H.Dey Jewellers' the appellant had no right, title and interest in the mortgaged property and as such no succession certificate could be issued in favour of his heir. Aloke Nath Dcv vs Government of Bangladesh (Mainur Reza Chowdurv. C.J (Civil) 1 ADC 528

Citation: 2ADC 675, 4ADC 308,

Subject: West Pakistan Shariat Application

Delivery Date: 2018-12-02

The West Pakistan Shariat Application Act, 1962, Section 3.

The High Court Division as well as the lower appellate Court rightly construed Ext. 1 as not a gift of corpus, but a gift of usufruct for life, which is permissible as the Muslim Law stands today in the sub-continent. Rabjel Mondal vs Didar Mondal (Mustafa Kamal J )(Civil) 2ADC 675

The writ-petitioner is violative of Article 20, 27 of the constitution

Directing the respondents to issue clearance permit in respect of 10 (ten) reconditioned vehicles imported by him within a period of 10 (ten) days from the receipt of the judgment. The High Court Division is not, as a matter of fact, to decide as to whether the import in question is of 5 years or more than that as have been found by the authority entrusted upon to determine the same nor could see how the discretion has been exercised by the authority invoking section 21 of the Import Policy. Chief Controller, Import and Export and others vs. Md. Faruk Ahmed (Mohammad Fazlul Karim J) (Civil) 4ADC 308

Dispute between the parties being as to whether Alam Gazi and Karimuddin together took settlement of the suit land on 5.10.1874 and that the plaintiff having proved the same on production of their registered Kubulyat Exhibit-1 and the entry in the C.S. Khatian No. 30, the learned Judges of the High Court Division erred in law in holding that the others sons of Alam Gazi are entitled to the suit land in excess of what they have inherited from Alam Gazi. The learned Counsel further submitted that the learned Judges of the High Court Division failed to notice that C.S. Khatian No. 30 records larger share in favour of the successors of Karimuddin in comparison of these of Karamuddin which is on evidence of the fact that the settement obtained on. 5.10.1874 by Alam Gazi an his son Karimuddin in equal shares. The learned Counsel further submitted that the learned Judges of the High Court Division have committed an error of law in modifying the decree passed by the learned Subordinate Judge on a wrong reading of the entry of C.S. Khatian and the same is also "based on no evidence". The learned Counsel further submitted that the plea of the benami to the effect that Karimuddin was a name lender on behalf of Kutubuddin for obtaining the settlement of the suit land on 5.10.1874 has no evidence on record to stand and as such the judgment and decree passed by the High Court Division in modifying the one passed by the Subordinate Judge is liable to be set aside. Abdul Hakim being dead his heirs Abdul Gani and others vs. Rajob Ali being dead his heirs YusufAli and others (Mohammad Fazlul Karim J)(Civil) 313

Citation: 9 BLC (AD) 209

Case Year: 1965

Subject: Trade Unions Act, 1965

Delivery Date: 2018-05-28

Trade Unions Act, 1965

[XVI of 1965]

Section 30—

The High Court Division referred to section 30 of the Trade Unions Act, 1965 which was a repealed law and the Registrar of Trade Unions has no authority to issue a certificate to a particular committee as a genuine committee declaring another committee to be a valid one.

Sultan Ahmed Talukder and another vs Registrar of Trade Unions and others 9 BLC (AD) 209.

Citation: 1ADC 41

Subject: Union Parishad

Delivery Date: 2018-12-02

Union Parishad (Election) Rule, 1983.

If the candidate or his election agent or polling agent is not present of his exigency or vagary the Presiding officer would not be required to postpone counting of the valid votes of the candidates, preparation of the statement in Form 'K' and sending the same to the Returning officer. Md. Mozibur Rahman Muznu vs Abdul Halim (Md Ruhul Amin J) (Civil) 1ADC 41

Citation: 5ADC 271, 5ADC 289, 5ADC 292

Subject: United Kingdom Companies

Delivery Date: 2018-12-02

United Kingdom Companies Act, 1985

Seeking amongst others, appointment of auditors to audit the accounts of the

company since its inception ................... (2)

HBS Association (Pvt.) Ltd. vs. professor Shahabuddin Khaled Chowdhury (Md. Tafazzul Islam J) (Civil) 5ADC 271

Since the title in the suit land belonged to the plaintiff and was not challenged, the plaintiff field a suit for cancellation of deed only followed by a consequential relief of recovery of khas possession. He next submits that the Government is not an interest party in the present suit land and as such there is no need for making the Government a party in the suit as the present suit is neither for specific Performance of Contract nor declaration of title and thus the provision of P.O. 142 of 1972 are not

applicable in the present case.................. (8)

Md.Shahidur Islam vs. Md.Habibur Rahman (Mohammad Fazlul Karim J) (Civil)5ADC 289

Seeking declaration that the order dated 7.7.1993 passed by the defendants-respondents discharging the petitioner from his service is illegal, void and also seeking reinstatement in his service with all arrear benefits....(2) S. M. Nurul Islam vs. padma oil Company Limited (Md.Tafazzul Islam J)(Civil) 5ADC 292

ARMS ACT, 1878 AND ARMS RULES, 1924

Acquisition and Requisition of Immovable Property Ordinance

CUSTOMS ACT, 1969

Bangladesh Oil, Gas and Mineral Corporation Ordinance,1985

DRUGS (CONTROL) ORDINANCE, 1982

Dhaka University Order 1973

The Environment Conservation Act, 1995

The Family Courts Ordinance,

Hat and Bazar (Establishment and Acquisition) Ordinance,1959

The Medical and Dental Council Act, 1980

The Muslim Family Laws Ordinance of 1961

The Sales Tax Ordinance, 1982

CONSTITUTION OF PAKISTAN, 1962

VILLAGE COURTS ORDINANCE, 1976

INDUSTRIAL RELATIONS ORDINANCE, 1969

CHILDREN ACT, 1974

Building Construction Act, 1952

Abandoned Building Provision of or dinance No. 54 0f 1985

Abandoned Building Provision of 1985

Abandoned Propertice lost character if released by Government

Acquisition and Requisition of Immovable Property Ordinanc

Acquisition and Requisition Ordinance 1982,

Application under Order 7 Rule 11 of the Code of Civil Procedure

Bangladesh Abandoned Property (Control, Manage and Disposal) Order, 1972

Bangladesh Agricultural Development Corporation Employees Service Rules, 1990

Bangladesh Biman Corporation Employees (Service) Regulations, 1979

Bangladesh Citizenship Temporary Order 1972 .

Bangladesh Civil Service (Re-organi­sation) Order, 1980

Bangladesh Public Service Commission (Conduct of Business) Rules, 1981

Bangladesh Rin Salishi Ain (XV of 1989),

Bangladesh Servants (Special Provisions) Ordinance 1979

Bank Companies Act, 1991

Bank Company (Amendment) Act, 2003

Banlgadesh Civil Service Recruitment Rules

Board of Intermediate and Secondary Education Ordinance, 1961

BOESL Employees Service Regulation,

Brick Burning (Control) Act, 1989

Challenged the result of the election filing an application under Article 49 of the Representation of the People order, 1972

Department of Shipping (Engineer and Ship Surveyor of Inland Ships) Recruitment Rules, 1980

Druta Bichar Tribunal Ain, 2002

Government and Autonomous Bodies Employees Benevolent Fund and Group Insurance Ordinance, 1982 (ordinance No. XXXIX of 1992)

Government Servants (Special Provisions) Ordinance, 1979-1

Indian Companies Act 1956,

Khulna City Corporation Ordinance, 1984

Mujibnagar Employees (Conditions of Service) Rules,1980.

Municipal Corporation (Taxation) Rules, 1986

MUSLIM FAMILY LAW ORDINANCE

Muslim Marriage and Divorces (Registration) Act, 1974

Muslim Marriage and Divorces (Registration) Rules 1975

Muslim Marriages and Divorces Registration Rules, 1975

Muslim Marriages and Divorces (Registration) Rules 1995

Nari-o-Shishu Nirjatan Ain, 1995,

NARI O SHISHU NIRJATAN BISHESH BIDHAN ACT

Negotiable Instruments Act, 1882

Non-Agricultural Urban Areas Tenancy Act of 1947

Parliament Secretariat Officers and Employees Recruitments Rules, 1982

People's Representation Act, 1951

Power Development Board (employ­ees) Service Rules 1982

Provisions of the Constitution Article 96(6), 48(2)

Requisition and Property Act, 1949

Service Regulation of 6(2) 1997

Sylhet Non-Agricultural Urban Areas Tenancy Act of 1947

The Abandoned building (Suppleumentary provisions) ordinance of 1985

The Application under order 39

The Arms Act (XI of 1878)

The Bangladesh Agricultural Development Corporation Ordinance 1961,

The Bangladesh Madrasha Education Board (Governing Bodies and Managing Committees) Regulation 1979,1997

The Cinematograph Act (II of 1918)

The Co-operative Societies Ain, 2001,

The Co-operative Society Rules, 1987,

the Code of Civil Procedure

The Code of Civil Procedure, Order IX Rule XIII

The Code of Civil Procedure (V of 1908)

The Code of Civil Procedure, (V of 1908)

The Code of Criminal Procedure (V of 1898)

THE CODE OF CRIMINAL PROCEDURE (V OF 1898 ) SECTION 561A

The Companies Act, 1994

The Companies Act (XVIII of 1994)

The conduct of Election Rule, 1972

The Constitutions of Bangladesh

Bangladesh Civil Service (Re-organisation) Order, 1980

Power Development Board (employees) Service Rules 1982